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MADRID v. RIMMER

United States District Court, N.D. California


January 15, 2004.

ALEJANDRO MADRID, et al., Plaintiffs
v.
RICHARD RIMMER et al., Defendants

The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

SPECIAL MASTER'S DRAFT REPORT RE DEPARTMENT OF CORRECTIONS "POST POWERS" INVESTIGATIONS AND EMPLOYEE DISCIPLINE
I.
INTRODUCTION
Pelican Bay State Prison ("PBSP") Sergeant E.M. Powers ("Powers") and Correctional Officer J. R. Garcia ("Garcia") were charged in the United States District Court for the Northern District of California (case CR-00-0105-MJJ) with a conspiracy to violate civil rights (18 U.S.C. § 241) and a substantive count of violations of civil rights (18 U.S.C. § 242). After a trial by jury, Powers and Garcia were convicted and sentenced to prison. The cases are presently on appeal.

While the Powers/Garcia criminal case was pending, officials from the California Department of Corrections ("CDC"), including attorneys from the CDC Employment Law Unit ("ELU"), prepared a detailed written plan entitled "Post Powers Investigative Plan and Disciplinary Review Process" ("Post Powers Plan") that called for investigations and discipline of those employees who had violated the PBSP use of force policy because of their involvement with the misconduct of Powers and/or Garcia. The Post Powers Plan was submitted to the Special Master. After several meetings and numerous revisions, it was approved by the Special Master.

  In June 2002, after the jury verdict in the Powers/Garcia criminal trial, various CDC officials, including the Department's highest ranking investigators and an ELU attorney met with Assistant United States Attorney Melinda Haag, one of the U.S. Attorneys who had prosecuted Powers and Garcia. Ms. Haag summarized the evidence presented at the criminal trial. The CDC officials at the meeting concluded that seven incidents of potential staff misconduct warranted further administrative review. Based on this Page 2 presentation, after a follow-up meeting on June 8, 2002, the decision was reached to pursue three of the seven cases further.

  The three cases will be referenced by the name of the inmate victim of correctional officer assaults. The Perez case involved Sergeant Powers assaulting inmate Perez in the prison chapel; the Black case involved Powers and other correctional officers assaulting inmate Black in a PBSP gymnasium; and the Chester case involved correctional staff planning and facilitating the stabbing of inmate Chester in a PBSP recreation yard. The underlying incidents, however, were not the focus of the CDC's investigation. Instead, and pursuant to the Post Powers Plan submitted to the Special Master, the CDC intended to investigate whether the subject Correctional Officers: Jones, Matlock, and Tuttle, had committed perjury during their testimony regarding the Perez, Black, and Chester incidents at the Powers/Garcia criminal trial.

  The Special Master was informed of the CDC's decision to pursue the three cases via a telephone conference with CDC officials in late June 2002. At that time, the cases were described as "solid." The Special Master was provided an update concerning the investigations at a "60-day" meeting in Sacramento in January 2003, and told that internal affairs investigations had commenced concerning the three cases. In late March 2003, however, the Special Master received a telephone call stating that the investigations had been completed and the decision made not to proceed with discipline.

  In his status report filed July 23, 2003, the Special Master informed the Court that the CDC had failed to comply with the use of force remedial plan and the Post Powers Plan. Rather than completing the investigations in six months, the investigations had not been assigned for four months. Instead of assigning a team of investigators, only one investigator was instructed to complete three complicated and serious investigations. No reports were prepared, no notes were retained, and only a fraction of the key witnesses on one of the three cases were interviewed. The remaining two cases were essentially ignored.

  The only case partially investigated, an incident involving Officer Jones directing Officer Schembri to look away when inmate Caldwell was to be stabbed, had been presented to Robert Gaultney ("Gaultney"), Assistant Chief Counsel of the ELU on March 20, 2003. Gaultney made the decision to refer the case to the San Francisco District Attorney. The investigator assigned to the case informed the California Correctional Peace Officers Association ("CCPOA") of the decision "to go criminal" on March 24, 2003. Shortly thereafter the investigator was ordered to appear at a meeting with the then Director of Corrections — Edward Alameida. On March 27, 2003, a week after Gaultney made the decision to go criminal, all three investigations were shut down by the Director of Corrections.

  The Special Master also reported that several statements in a "fact finding" letter prepared by the CDC's Central Office to support the decision to close the investigations were false. For example, concerning the incident where Officers Jones and Matlock are alleged to have covered up Sergeant Power's assault of inmate Perez, the letter stated: "Perez's credibility is questionable due to a history of mental illness." As verified by Court expert Dr. Jeffrey L. Metzner, Mr. Perez does not have a mental illness or a history of mental illness. Concerning the allegation that Officer Jones told Officer Schembri to look away when inmate Chester was to be stabbed, the letter stated: "Officer Manzano was in the control booth during the alleged conversation between Schembri and Jones and stated he did not hear the alleged conversation." Department of Corrections documents and the trial transcript, however, prove this statement to be false. Officer Manzano testified with immunity that he was in the control booth when Officer Jones spoke to Officer Schembri and he did hear a conversation about inmate Chester being in trouble, but heard nothing about Chester being stabbed. Finally, the Special Master informed the Court that the CDC had Page 3 missed the one year statute of limitations to file administrative charges against Officers Jones, Matlock, and Tuttle.

  Based on these initial findings, the Special Master recommended a series of hearings concerning the Post Powers/Garica investigations and the decision to shut down the three cases. At the Status Conference of July 28, 2003 the Court instructed the Special Master to proceed with those hearings and develop a full record and report.

  II.

 

THE PELICAN BAY STATE PRISON USE OF FORCE REMEDIAL PLAN
  The Court approved use of force remedial plans at PBSP mandates that certain actions take place during an investigation of misconduct involving false, incomplete, evasive, or lack of cooperation by staff during abuse of force investigations. All managers and supervisors involved with PBSP investigations and discipline have the responsibility to investigate incidents of abuse of force, including incidents where correctional officers cover-up, withhold, or act in concert with others to prohibit factual information from being reported as required by the Use of Force Policy. Managers also must document the use of force and document investigation findings. Specifically:

 

It shall be the responsibility of each supervisor and manager to review any employee misconduct related to the use of force and take appropriate action in compliance with this policy and procedure.
See, PBSP Use of Force Disciplinary Policy Section II.D (9/30/02)
. . . when an employee violates the below tenets of the Use of Force Policy, the adverse action process shall be initiated at a level above an official reprimand. 2.Any attempt to cover up or withhold any information relative to staff misconduct in any use of force.
  33.Any involvement in a coordinated effort with other staff to prohibit factual information from being reported as required in the Use of Force Policy.

 

See, Use of Force Disciplinary Procedure Section V.C. 2-3 (9/30/02)
At the conclusion of the investigation, the investigator shall provide a detailed report of the investigation on a CDC Form 989A and B, Internal Affairs Investigation Report. The CDC Form 989A and B shall be filled out completely and contain the facts and evidence discovered by the investigator.
See, Use of Force Investigation Policy and Procedure Section VIII.B.3 (9/20/00)
  The findings of each allegation shall be noted as to whether the inquiry supports or refutes the allegation(s). The investigator shall arrive at one of the following findings identified in Section VII, Subsection B, (5), (b), of this procedure. Page 4

 

See, Use of Force Investigation Policy and Procedure Section VIII.B.4 (9/20/00)
Neither party disputes the fact that the administrative investigations of Officers Jones, Matlock, and Tuttle involve the most serious form of false, incomplete, and evasive misconduct that can occur in relation to an abuse of force: perjury when testifying at a criminal trial in Federal Court. The evidence reviewed by the Special Master prior to the hearings indicated that the Director of Corrections and other high ranking officials in the CDC may have themselves violated the use of force remedial plan by (1) failing to ensure that the alleged misconduct of Jones, Matlock, and Tuttle was investigated, (2) failing to adequately investigate and discipline any such misconduct, and (3) failing to complete the Internal Affairs Investigation Report mandated by the remedial plan and the CDC's Department Operations Manual ("DOM"). The report below addresses these issues.
III.
THE SPECIAL MASTER'S HEARINGS AND DOCUMENT REQUESTS
  The Special Master conducted five days of hearings concerning the Post-Powers/Garcia administrative investigations. The dates of the hearings, witnesses, and references to the transcript are set forth in Appendix 1 attached to this report. The transcripts have been lodged with the Court, along with the exhibits placed in evidence at each hearing. The page numbers for the transcripts are sequential; therefore, citations to testimony from the hearings will reference the name of the witness, followed by "Tr." and the page of the transcript where that testimony is found.

  The exhibits placed into evidence at the hearings are set forth in Appendix 2. The Special Master will also refer to additional exhibits in this report. These exhibits are either documents provided by the Department of Corrections or reports from Court expert Dr. Patrick Maher. The additional exhibits are listed in Appendix 3. Finally, the Special Master also reviewed and considered a number of documents provided by the Department of Corrections which are not referenced in this report. Those documents are set forth in Appendix 4. Appendix 5 is a glossary of Department of Corrections acronyms used in the report.

  The exhibits listed in Appendixes 2-3 have been filed with the Court concurrently with the filing of this report. Exhibit 29, an Office of the Inspector General ("OIG") report concerning problems with the Office of Investigative Services ("OIS"), will be filed under seal.

  The Special Master held numerous discussions with counsel during the hearing process. He allowed the parties to examine and cross-examine witnesses. The Special Master also allowed the parties the opportunity to call their own witnesses during the hearings. For example, defendants presented the testimony of Michael Miller and David Tristan ("Tristan"). In addition, the parties were provided the opportunity to submit documentary evidence in addition to documents placed in evidence by the Special Master. For example, defendants submitted into evidence exhibits 25 and 32. The parties were also offered the opportunity to argue at the final hearing; however, both plaintiffs and defendants declined the offer.

  The findings below are based on all of this evidence.

  IV. Page 5

  FINDINGS

 A. Introduction.

  During the course of the Special Master's hearings evidence came to light that:

  1. The Post Powers internal investigations were inadequately staffed, began four months late, and were shut down by Director Edward Alameida ("Alameida") before the investigations were completed.

  2. The untimely start of the investigations, the processing of the investigations, and Alameida's decision to shut down the investigations violated the Use of Force Discipline Remedial Plan, the Department Operational Manual ("DOM") for the Office of Investigative Services ("OIS"), and the Post Powers Plan.

  3. In conjunction with closing three active investigations, a false and misleading letter was sent to the Special Master. The investigations were never properly closed-out, and no internal affairs reports were prepared.

  4. The Post Powers investigations are indicative of serious systemic problems in the OIS and the ELU, problems identified two years ago by the Office of the Inspector General ("OIG) and never corrected by the CDC.

  5. The criminal and administrative investigations concerning misconduct by Powers, Garcia, and former Correctional Officer David Lewis ("Lewis") and the Post Powers investigations have been disrupted over the last ten years by the California Correctional Peace Officers Association ("CCPOA").

  Much of this evidence is not in dispute. There are disputes, however, with respect to what occurred during the period of March 20-27, 2003, when the decision to shut down the Post Powers cases was made.

 B. History of the Criminal Prosecutions Against Powers, Garcia and Correctional Officer David Lewis.

  1. The Shut-Down of the PBSP Internal Affairs Investigation.

  The initial Department of Corrections investigations into possible administrative and criminal misconduct by Powers and Garcia began in the mid-1990s. At first, the investigations were conducted by a team of PBSP internal affairs investigators reporting to Captain Dan Smith. The team involved Joe Reynoso ("Reynoso"), Craig Franklin, Chet Miller and Lt. Roussopoulous. (Reynoso Tr. 484-485) Almost immediately, the investigation team encountered resistence from local representatives of the California Correctional Peace Officers Association ("CCPOA"). Charges and counter charges were filed, and eventually litigation. The Special Master was working on this case as a Court appointed expert at the time and discussed this issue with Warden Steve Cambra on several occasions from 1995 through 1997. Given the level of CCPOA resistence, Warden Cambra became concerned about the ability of local investigators to complete the investigations. He eventually made the decision to close-down the local case and refer the investigation of Powers and Garcia to the CDC's Law Enforcement Investigation Unit ("LEIU"). LEIU investigates criminal misconduct on the part of staff and inmates. See also, Reynoso Tr. 485.

  2. The LEIU Investigation and the State Court Criminal Trial of Garcia.

  George Ortiz of LEIU assumed responsibility for the investigation. Charges against Officer Garcia were sustained and state court criminal charges were filed concerning a conspiracy to have inmates assaulted, bringing alcohol into a state facility, and assault with a deadly weapon likely to produce great bodily injury. (Reynoso Tr. 486-487). The CDC provided investigative and legal assistance to the District Attorney of Del Norte County in the Garcia criminal prosecution. (Reynoso Tr. 487; Sheldon Tr. 600; Gaultney Tr. 831) The attorneys selected by the CCPOA to represent Garcia in the criminal case were Page 6 Robert Noel and Marjorie Knoller. Garcia was found guilty of the conspiracy charge, the alcohol charge and the assault charge. Garcia's state court conviction was later overturned (Reynoso Tr. 488-489).

  3. The Termination of Correctional Officer David Lewis.

  ELU staff attorney Barbara Sheldon ("Sheldon") worked with the district attorney in the Garcia state criminal prosecution. (Sheldon Tr. 600). Sheldon also handled the administrative case against Lewis (Sheldon Tr. 600). Lewis' employment with the California Department of Corrections ("CDC") was terminated on October 4, 1996 because of misconduct that included calling inmates "primates," "monkeys," "toads," and "niggers," and for demeaning actions toward sex offenders. The termination was upheld by the California State Personnel Board which found, among other things, that Lewis' misconduct included inexcusable neglect of duty, discourteous treatment, and a failure of good behavior which caused discredit to the Department of Correction.

  4. The Obstruction of Justice Investigation of CCPOA Representatives Alexander and Newton, and the Sustained Findings of the Knowles/Palmer Investigation.

  Ms. Shelton testified at the hearing of September 25, 2003 about an obstruction of justice investigation that was initiated because of alleged misconduct by CCPOA representatives during the criminal investigation of Garcia. The investigation subjects were PBSP CCPOA representatives Charles "Chuck" L. Alexander, Jr. ("Alexander") and Richard T. Newton ("Newton"), and Correctional Officers Robert Rice, Jean Rupert, Roy Alvarado, and Deanna Frietag. The formal internal affairs investigation was authorized by then Regional Administrator Michael Pickett. It was conducted by M.E. Knowles, Chief Deputy Warden of High Desert State Prison, and P.D. Palmer, Facility Captain, Folsom State Prison. Their report, referred to as the "Knowles/Palmer Report," was completed September 22, 1997 and is attached as Exhibit 26.

  The report sustained numerous charges against CCPOA representative Alexander, including inappropriate and questionable activity under the guise of Union business, preparing State Personnel Board requests for adverse action with malice, and misusing their authority as CCPOA representatives to access confidential information. CCPOA representative Newton had the same sustained charges, plus a sustained charge of having knowledge of Garcia's illegal and inappropriate behavior and failing to properly report that behavior. Newton possessed this information during the on-going criminal prosecution of Garcia and while Newton assisted in representing Garcia during his SPB hearing. Alexander and Newton received formal notice of the investigation findings of sustained charges via a memorandum for Captain Barry O'Neill dated October 31, 1997. (Exhibits 27 and 51) Alexander and Newton sued the CDC over the Knowles/Palmer Report. (Exhibit 28) The litigation subsequently settled. (Sheldon Tr. 634-635).

  5. The Federal Criminal Prosecution of Powers and Garcia.

  Investigator Reynoso was assigned to assist with the FBI investigation of criminal misconduct by Powers and Garcia in 1998. (Reynoso Tr. 489-490) Sheldon was the department liaison for the grand jury in the case. (Sheldon Tr. 601).

  CCPOA resistence to the Powers/Garcia criminal investigation continued. At one point during the FBI investigation, the union put out a memo notifying staff that internal affairs was going to be at PBSP and informing correctional officers they did not have to talk to them, in essence sending a message not to cooperate with internal affairs no matter what position they were in. (Reynoso Tr. 495). In order to interview correctional staff, subpoenas had to be issued to force their testimony before the grand jury. (Reynoso Tr. 496). Because of the code of silence one officer did not come forward with any information until he left the CDC's employment for fear of his safety. (Reynoso Tr. 497; Haag Tr. 794-795). The Special Master became involved with this problem shortly before the federal criminal trial began, when correctional officers who were willing to testify for the prosecution at trial told the FBI they had been informed by CCPOA representatives that if their testimony at trial differed from their reports at the time of the incident, the CCPOA would request the CDC to initiate discipline charges against them. Furthermore, CCPOA representatives would be attend the Powers/Garcia criminal trial to monitor correctional officer testimony. The Page 7 Special Master discussed this problem in two meetings, one at the prison and one in Sacramento with CDC officials from the Central Office.

  6. The Federal Criminal Prosecution of Lewis.

  While investigating the allegations against Powers and Garcia, the FBI came across evidence which revealed that in 1994 Lewis (the same officer who was subsequently terminated for calling inmates "primates," "monkeys," "toads," and "niggers," and for demeaning actions toward sex offenders) intentionally shot inmate Harry Long while on duty in a Pelican Bay gun tower. (Reynoso Tr. 490-491) Apparently, Lewis erroneously believed that inmate Long was a child molester.

  As a result of this investigation federal criminal charges were filed against Lewis. The CCPOA selected Noel and Knoller to represent Lewis. He was convicted by a jury in the United States District Court for the Northern District of California for deprivation of rights under color of law in violation of 18 U.S.C. § 242 and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924. Lewis' conviction was overturned by the Ninth Circuit in an unreported decision filed October 26, 2001. Renewed charges against Lewis are pending in the U.S. District Court for the Northern District of California. The case is scheduled for re-trial in 2004.

 C. Defendants' Post Powers/Garcia Investigation and Discipline Plan.

  While the Powers/Garcia federal criminal trial was pending, the Special Master was informed that the CDC had no established program to discipline correctional staff who may have been involved in violations of the use of force remedial plan, which, while not rising to the level of criminal misconduct, were serious enough to require administrative discipline. The CDC had neither a sufficient plan, nor precedent to conduct this form of administrative review. For example, no correctional officer was investigated after the Garcia state court trial, even though some officers did not testify truthfully in the opinion of the CDC's attorney. (Sheldon Tr. 612).

  Therefore, the Special Master requested in October 2001 that CDC officials develop a Post Powers administrative investigation and discipline plan. Sheldon was primarily responsible for preparing the plan, in conjunction with John Sugiyama, then Deputy Director, Legal Affairs Division. (Sheldon Tr. 602) The plan was developed by ELU in conjunction with the OIS. Sheldon was supervised by Gaultney, who, at the time, was the Assistant Chief Counsel of the ELU. Several meetings were held with CDC officials during the development of the plan, numerous criticisms were made of early drafts, and extensive changes were made to the final version of the plan. (See e.g. the letters and reports from Court expert Dr. Patrick Maher in Exhibits 22-25; see also Sheldon Tr. 604-607). Sheldon took her project very seriously. The final version of the Plan is attached as Exhibit 2. No one disputes the fact that the CDC made a commitment to the Special Master to implement the plan as necessary.

  Some of the more important provisions of the plan required the following: Page 8

 

At all times during the process, Assistant Chief Counsel of the Employment Litigation Unit Robert Gaultney and Supervising Senior Staff Counsels Debra Ashbrook, Vickie Brewer and Barbara Sheldon will be available to monitor the process and be available for consultation.
The investigators will follow Department authorized investigation protocols in completing the investigations.
The expectation is that the investigations will all be completed within 6 months of learning the names of employees who may be subject to discipline. Staff Counsel will be available for consultation throughout the investigations.
When the investigations are completed they will be sent to the Warden of the institution or the Regional Administrator of the Parole Region where the employee is assigned. After consultation with the Assistant Chief Counsel and the Supervisors of Legal Affairs, the hiring authority, whether a Warden or a Regional Administrator, will make a recommendation regarding discipline.
  Numerous Central Office officials were aware of the plan, including Gaultney, Dennis Beaty ("Beaty"), Brian Parry ("Parry"), Vicki Brewer, and Thomas Moore ("Moore"). (Sheldon Tr. 618; Gaultney Tr. 821-822). Director of Corrections Alameida and Chief Deputy Tristan, however, testified they had not seen the plan at the time of the critical meeting of March 27, 2003. (Alameida Tr. 695; Tristan Tr. 873) Likewise, as explained below, the investigator and attorney assigned to the Post Powers administrative cases were kept in the dark about the CDC plan.

 D. The Meeting Between Melinda Haag and CDC Officials.

  On June 4, 2002, after Powers and Garcia were found guilty, Assistant United States Attorney Melinda Haag met with Parry, who at time was directing the operations of both LEIU and OIS, Joe Barbara ("Barbara"), the ELU attorney assigned to oversee the Post-Powers investigations, Moore, and Reynoso. (Barbara Tr. 17; Reynoso Tr. 498-501; Parry Tr. 422-423; Haag Tr. 774).

  Ms. Haag was told the CDC was evaluating whether it should conduct administrative investigations to determine whether department employees had been untruthful in their testimony in the Powers/Garcia criminal trial. Ms. Haag was asked if she would meet with various people from the CDC and summarized for them the trial testimony. It was her understanding the Department was particularly interested in circumstances where correctional officers testified contrary to the evidence presented by the government. (Haag Tr. 774-776) Ms. Haag provided an oral summary of the evidence presented at trial at the meeting of June 4th. Thereafter, a written summary of seven potential cases was prepared by Parry for Barbara's signature (Barbara Tr. 20; Parry Tr. 422; see Exhibit 3).

  A second meeting was held concerning the seven cases a few days later. This meeting was limited to CDC staff, and included Parry, Barbara, Moore, Reynoso, and Gaultney. (Reynoso 502-503). Each case was discussed and analyzed. Moore suggested, given the length of time that had expired since the underlying use of force incident, that the CDC should just let the cases go. Gaultney, however, disagreed. Gaultney instructed the other participants to determine what cases should be investigated. (Reynoso Tr. Page 9 504; Parry Tr. 424). The decision was made to proceed with three cases. (Barbara Tr. 25, Parry Tr. 424-428; Gaultney Tr. 821-823) As explained by Parry at the hearing of August 26, 2003, he felt that three cases were strong enough to pursue. He testified that the participants at the meeting were not "forced" by the U.S. Attorney's Office or the Special Master to take the three cases. The CDC's investigators and attorneys made the decision to pursue the cases because there was alleged misconduct and they were presented in such a way that they were going to have to look at them. (Parry Tr. 471; Haag 789).

  The CDC thereafter requested transcripts and investigation reports from the U.S. Attorney to commence its review of the three selected cases. These documents were provided to the CDC in a timely manner. (Exhibit 5).

 E. The Substance of the Administrative Investigations of Correctional Officers Jones, Matlock, and Tuttle.

  The underlying facts of the three "Post-Powers" investigations and the suspected perjurious testimony of Correctional Officer William Jones ("Jones"), Charles Matlock ("Matlock"), and Owen Tuttle ("Tuttle") are set forth below: Perez Incident

  The evidence in the case involving inmate Perez was primarily presented at trial by former C.O. Jim Mather ("Mather"), and by reports and conclusions that could be drawn from those reports. Mather was an officer at the time of the incident in February 1991 and he was assigned to the yard that day. His supervisor was Powers. Mather testified as follows:

  Powers assigned Mather and Officer Bill Jones to search inmates as they came out of the education area. Mather did not know if there was a particular reason for the searches. Marco Perez was among the group of inmates to be searched. When it came Perez's turn to be searched, Perez was not cooperative. In their efforts to make Perez cooperate, they turned him to a wall. Perez spun off the wall and in doing that he ended-up punching or hitting Mather. In response to Mather being hit, a group of officers converged on Perez, including Jones and an officer named Matlock. The officers took Perez to the ground. Mather was also on the ground and he saw that Matlock was kicking Perez. Mather was aware of that because he was afraid he was going to be kicked and Mather told Matlock to stop. There was testimony in the trial that kicking is not appropriate under the circumstances of the Perez incident.

  Perez resisted initially, but the officers were able to control and subdue him. Eventually Mr. Perez was under control and on the ground. At that point, Powers, who was watching, instructed the officers to take Perez into a hallway that led to a chapel nearby. The officers picked Perez up and took him into the hallway. Powers followed. Handcuffs were placed on Perez. Once Perez was in the hallway, Powers ordered that the handcuffs be taken off. Powers said something to the effect of, "don't mess with my officers" and then Powers punched Perez. At that point, Perez was taken to the ground and strip searched. Nothing was found.

  In the aftermath, Powers told the officers to write reports. Mather wrote a report and included that Perez was taken into the hallway, he did not, however, include anything about punching in the hallway. Mather testified he did not include the punching because of the code of silence. Mather knew he shouldn't say that Powers hit Perez. Mather submitted his report to Powers. When he received a typed version of the report back, there was no reference at all to the hallway. The report simply said there was an incident; Perez hit Mather, the officers took him to the ground, subdued him, and transported him to medical — leaving out the hallway incident altogether.

  At trial the government introduced the reports prepared by each of the officers on duty. All of the Page 10 reports were written the same way; there was no reference to Perez being taken into the chapel hallway. The suspected perjurious testimony Ms. Haag brought to the attention of the CDC was as follows: When the defense called Jones as a witness, Jones said that Powers did not punch Perez. Matlock was also called by the defense, and he said the same thing. (Haag Tr. 776-780)

 Black Incident

  The testimony concerning the inmate Black incident came from Inmate Michael Black, two other inmates at the prison, a statement made by Powers to the FBI, and statements from Lt. Gary Wise. Black testified about previous confrontations he had previously had with Garcia and Powers, and with other officers on the Powers' crew. Black was on the yard when he approached by Officers Tuttle and Payne, who ordered him to strip out — on the yard. Black testified that in the prison culture, an order to strip out in public is very disrespectful, and not commonly done. Black refused to strip out on the yard and was "hot" with the officers for asking him to do so. The officers called Powers on the radio, Powers instructed the officers to take Black into the gym nearby. Powers ordered that the handcuffs be taken off of Black. Powers said something like, "so you think you are a tough guy," and then Powers punched Black. At that point, other officers joined in and took Black to the ground.

  Two other inmates testified. The first was inside the gym, heard a scuffle inside, saw Black go in, saw Black come out and heard what he thought was a scuffle in the gym. Another inmate testified he also heard the scuffle, and saw part of what happened in the gym. Afterwards, Powers instructed the inmate to "clean this mess up," referring to the inside of the gym. Powers had been interviewed by the FBI at some point during the pre-trial process, and told the FBI he struck Black during that incident in order to bring him under control. Lt. Wise ("Wise") testified that he came on duty after the Black incident as a supervisor, checked to see if there had been any incidents that required his attention and found there had been none, nothing was recorded in any way. Soon after Wise started his shift, Payne went to medical and reported an injury. Medical staff then contacted Wise because there were had been no reports to support an incident that would have resulted in an injury to Payne.

  Wise called Payne to find out what had happened. Payne said there was an incident with an inmate and he had been injured. Wise ordered that reports be written. Those reports were introduced at trial. They all reflected an incident between the group of officers and Black, and they all claimed that Black had assaulted Powers. Wise thought it was very unusual that no administrative action had been taken against Black. Inmate assaults on staff were taken very seriously.

  The suspected perjurious testimony concerning the Black incident was as follows: Correctional Officer Tuttle testified for the defense and said that Powers did not assault Black. (Haag Tr. 780-783)

 Chester Incident

  The Chester incident was explained to the jury through testimony of Correctional Officer Bill Schembri ("Schembri"), Correctional Officer Judy Glover ("Glover"), former Correctional Officer Mather, former Correctional Officer Joe Manzano ("Manzano") and the inmate/victim, Leonard Chester ("Chester"). A teacher at PBSP and several other witnesses also testified about motive.

  Schembri testified that he was in a gun tower and was approached by Officer Bill Jones. Jones said something to the effect that Powers wanted Jones to see who was working the tower. Jones told Schembri that an inmate that was going to be hit on the yard — and for Schembri to look the other way. Schembri did not know the inmate who Jones was talking about. He didn't know if Jones was serious or not. Schembri thought it might be a test or a joke. Schembri asked Jones questions about the prisoner and Jones described the inmate as a Black man who normally wore blue sunglasses. Schembri then knew who Page 11 Jones was talking about. After further questioning, Jones told Schembri the yard was going to be recalled late, and Schembri needed to look the other way. After Jones left the gun tower Schembri called his wife, who also worked at PBSP. Nothing happened that day.

  The next day Schembri had the same assignment. At some point he left his post and went to run an errand. As Schembri was returning, he heard the yard being called down, looked over and saw that the same inmate whom Jones had been talking about — Chester — had been stabbed on the yard. Schembri responded to the incident. Powers was on-site and ordered Schembri to preserve the crime scene. Schembri saw the weapon that had been used to stab Chester.

  Judy Glover also testified. She was an investigator at the prison and was called to the yard in response to the stabbing. Glover said Powers was in charge of the yard. Glover went out to the yard and saw that an inmate had been stabbed. Schembri pointed out the weapon. Glover asked Powers if he had any suspects and he said he did not. Glover took control of the weapon and went to interview Chester, who had been taken to medical. Glover asked Chester who stabbed him. Chester said he'd already told Powers who did it. Glover returned to Powers and asked Chester's statement. Powers said it wasn't true. Glover again asked Powers if he had a suspect. Powers said he didn't because there were too many people on the yard. Glover observed that in her absence, Powers had begun to allow inmates go back to their cells. She later determined he had made no effort to record the names of the inmates on the yard at the time of the stabbing, nor did he search them when they returned to their cells.

  Chester testified that he had been having run-ins with officers who worked with Powers. He had been approached a couple of days before the stabbing by Officers Sanders and Payne, who strip searched him. Sanders said to Chester something to the effect of, "we know what you are up to and we'll take care of our business on the yard." That made Chester nervous about the officers. Chester wanted to return to his cell the day he was stabbed. He approached Officer Mather and asked to go back to his cell. Mather called the office, and then told Chester that "per the Lieutenant," he was not allowed to let Chester go his cell. Mather told Chester he needed to talk to the Lieutenant. When Chester crossed the yard to talk to the Lieutenant, he was stabbed.

  Officer Manzano was in the control booth when Jones came in to speak with Schembri. Manzano remembered Jones coming into the control booth and speaking to Schembri. Manzano also testified the discussion had something to do with an inmate being in trouble.

  The suspected perjurious testimony presented by Ms. Haag was as follows: Jones testified for the defense and denied that he had a conversation in the gun tower with Schembri. (Haag Tr. 784-789)

 F. The Failure to Promptly Commence the Administrative Investigations.

  Parry retired from the Department of Corrections on July 17, 2002. Thereafter, the leadership positions he held in LEIU and OIS were filled by a series of "acting" Assistant Directors. (Parry Tr. 430) For example, George Ortiz served for a short period of time as the acting Assistant Director in LEIU, followed by Rick Rimmer. Moore became the acting Assistant Director of OIS. Meanwhile, investigator Reynosa returned to LEIU and began a series of assignments on the streets (Parry Tr. 431; Reynoso Tr. 523).

  The Jones, Matlock, and Tuttle investigations, which Parry assured the Special Master would begin in June 2002, did not in fact begin for four months. The reason for the four month delay is not in dispute. Moore, the acting Director of OIS, simply did not prepare the requisite 989 forms until October 2002. Although OIS agent Bob Ballard ("Ballard") was told in May or June 2002 he would be assigned to Page 12 investigate the cases, he was not officially assigned until October. (Ballard Tr. 271-272; Barbara Tr. 31, 32, 35-36) See also the 989's dated October 8, 2002 (Exhibits 4, 6 & 7).

  An internal affairs investigation cannot begin without a signed 989. Sound policy reasons exist for the 989 requirement, to ensure that the nature of the investigation and the specific subjects are carefully documented. (See, e.g. Grout Tr. 559; Ballard Tr. 275, 285). The delay starting the three cases proved critical. Under California' Peace Officer Bill of Rights ("POBAR") law enforcement personnel have a statutory right to receive formal notice of administrative discipline within one year after the date that management learns of the facts that may justify discipline. The one-year POBAR statute of limitations is "stayed" during criminal prosecutions. Thus, the statute of limitations concerning the investigations of Correctional Officers Jones, Matlock, and Tuttle required that the investigations be completed and the decision to impose discipline or not be made within one year after the Powers/Garcia criminal trial ended. To their credit, the investigator and lawyer team led by Parry made an initial contact with Melinda Haag in a timely manner. Moores' four month delay, however, dealt the investigations a serious setback from which they never recovered, as explained below.

  The evidence is also undisputed that the 989 forms prepared by Moore in October 2002 were vague and repetitive. Indeed, instead of spelling out the different factual situations that required investigations, Moore simply prepared one inaccurate, generic description for all three cases. Exhibits 4, 6 & 7. (Barbara Tr. 37; Ballard T. 295-296). See also Court expert Dr. Patrick Maher's reports concerning the three investigations, Exhibits 46-48.

  Finally, the evidence is uncontradicted that, in addition to failing to prepare the 989's in a timely manner and failing to prepare adequately specific 989's, Moore did not tell investigator Ballard about the Post-Powers administrative investigation plan. Likewise, Gaultney, the Assistant Chief Counsel of ELU, failed to inform Barbara, the attorney he assigned to the cases, about the Post-Powers administrative investigation plan. Thus, the two men directly responsible for implementing the CDC's plan were not aware it existed. (Barbara Tr. 17; Ballard Tr. 277-279)

 G. The Post Powers/Garcia Investigation.

  The course of the three investigations are summarized on the investigation chronologies attached as Exhibits 1, 8 & 9. The investigations were woefully inadequate concerning timing, documentation, and completeness. Court expert Dr. Patrick Maher provides an analysis of the cases in Exhibits 46-48. He concludes the cases were understaffed, were not adequately investigated, and that facts existed, at the time the investigations were shut down by the Director of Corrections, that warranted the cases being completed. Simply stated, Ballard and Barbara were placed into an impossible position given the existing time pressures, inadequate assistance, and their lack of knowledge of the Post-Powers investigation and discipline plan. As Dr. Maher reports, there was significant evidence that officer misconduct did take place. At the very least, the investigations were improperly stopped before all of the relevant facts were obtained. The Special Master agrees with Dr. Maher's findings.

  Some investigative tasks were completed. For example, Ballard interviewed inmate Black on November 26, 2002 at California State Prison Sacramento. Ballard found Black to be truthful. (Ballard Tr. 300) Shortly thereafter, Ballard and Barbara traveled to Southern California to interview Correctional Officer Schembri (Barbara Tr. 45; Ballard Tr. 301-303) Schembri informed them, in a taped interview that he had been told by Jones to look away when inmate Chester was to be stabbed in a Pelican Bay recreation yard, consistent with his testimony at the Powers/Garcia criminal trial. Barbara and Ballard found Schembri to be a credible witness (Barbara Tr. 47 & 48) After his interview with Schembri, Barbara came Page 13 to the conclusion that he could prosecute Officer Jones (Barbara Tr. 48).

  On the other hand, there were aspects of the investigation that were not followed-up on, and faulty information was obtained that was not properly verified. For example, Ballard requested the personnel file of Mather from PBSP on January 8, 2003. Mather was a critical witness in the Perez incident. Ballard never received the file. (Ballard Tr. 303-304). Ballard was also told that inmate Perez had mental health problems. He conveyed this false information to Barbara. (Barbara Tr. 41-42). Neither Ballard or Barbara took steps to verify the information with PBSP mental health clinicians; indeed, there was no effort to review Mr. Perez's medical file (although Mr. Ballard did attempt to schedule a personal interview with Perez, as explained below). These investigative failures would surface later in the letter conveying false information to the Special Master after the Post-Powers investigations were shut-down on March 27, 2003.

  Throughout the five month investigation period, from October 2002 through March 2003, investigator Ballard essentially worked without guidance or supervision from the Office of Investigative Services. For example, at the hearing of July 30, 2003 the Special Master asked investigator Ballard the following question: "He (referring to Thomas Moore, Ballard's supervisor) didn't sit down with you periodically and have like a status conference and ask you what is the state of these cases?" Ballard responded: "No. not at all." (Ballard Tr. 277: 14-21)

 H. CCPOA Involvement At the Interview Stage of the Post Powers Investigations.

  Investigator Ballard planned to interview the witnesses and subjects of the investigations at Pelican Bay during the first week of March 2003. (Ballard Tr. 307-308) Law enforcement officers who are the subjects of internal affairs investigations have POBAR statutory rights to receive advance notice of investigative interviews and to have a union representative present during the interview. Pursuant to past practice and its interpretation of labor contracts with the CCPOA, the CDC provides advance notice and allows representation not only to the subjects of investigations, but to all other witnesses as well. (Barbara Tr. 56) Therefore, Ballard provided PBSP with written notice of interviews with Correctional Officers Joseph Manzano, Ronald Parker, Greg Devos, Lt. Maxwell, Tuttle, Jones, and Matlock. Ballard also intended to look for former Correctional Officer Mark Payne, who had left state service. (Ballard Tr. 307-310; Barbara Tr. 56-58; Miller Tr. 843) In addition, Ballard planned to interview inmate Perez, Ballard informed the internal affairs unit at PBSP which then informed the correctional officer witnesses and subjects. (Yaks Tr. 405-406)

   While Ballard and Barbara believed the incident involving the stabbing of inmate Chester to be their strongest case (based in part on their joint interview of William Schembri), as of March 6, 2003 Ballard had not made up his mind that any case did not have merit and intended to go through the investigation process. (Ballard Tr. 311-312). Thus, the subjects and witnesses for all three cases were to be interviewed.

   The interviews at PBSP, however, never took place. On March 10, 2003 attorney Christine Albertine of the CCPOA called Ballard and requested he reschedule the interviews. Ballard agreed to postpone the interviews; however, he informed Ms. Albertine that he was under time constraints. A two week postponement was agreed to, subject to a two week extension of the statute of limitations concerning the filing of charges against the subject officers.

   Thereafter, Ms. Albertine sent Ballard five letters demanding numerous documents prior to conducting the interviews. The documents demanded by the CCPOA included "the tape of the previous investigatory interview conducted by SSU and trial transcripts . . . any tapes, documents, etc. of previous interviews that (the officer) participated in or transcripts of testimony given by (the officer) regarding the subject of the Federal Trial. These include but are not limited to FBI, grand jury, Department of Justice, or Page 14 CDC files the Department of Corrections may have. In addition, if there is any adverse comment contained in any file maintained by the Department of Corrections regarding this incident, (the officer) is entitled to know of that comment and respond to it." Ms. Albertine's letters are attached as Exhibits 10-15.

   Ballard discussed the CCPOA's demand for documents with Barbara. Barbara told Ballard the union was not entitled to any documents. Later, however, after Ballard showed Albertine's letters to Barbara, Barbara recommended they meet and confer with his supervisor, Assistant Chief Counsel Gaultney. (Ballard Tr. 313-315; Barbara Tr. 58-61)

  I. The March 20, 2003 Meeting Between Ballard, Barbara, and Gaultney and the Decision to Refer the Jones Investigation to the District Attorney of San Francisco.

   Ballard, Barbara and Gaultney met to discuss the three investigations in Gaultney's office on March 20, 2003. Gaultney agreed with Barbara, that the CCPOA was not entitled to any documents. Gaultney, however, wanted to know why the U.S. Attorney had not filed criminal charges concerning the Chester investigation, the case with Schembri as a witness and Jones as a subject. Ballard and Barbara did not know. Gaultney told Ballard and Barbara to just "write up the cases without any interviews, just take your existing does, and file criminal — submit the case to the San Francisco D.A.'s office." Gaultney instructed Ballard to submit that case to the D.A. whether the D.A. wants to file it or not. (Ballard Tr. 319) Concerning the Matlock and Tuttle cases, Gaultney instructed Ballard to close them up, to get them done. Investigator Ballard did not interpret that to mean close them with a specific finding, just get them done. (Ballard Tr. 320-321). It was Ballard's understanding he should pursue the remaining two cases (Ballard Tr. 320-321; 323-324).

   The Special Master finds that the legal component of the CDC's Post Powers investigation suffered from the same lack of competent leadership that plagued the investigation component. Gaultney's decision to stop all the interviews and refer one of the three cases to the San Francisco District Attorney was either inexcusably negligent or a deliberate attempt to thwart the Post Powers investigations. Gaultney supervised the preparation of the Post Powers Plan. He was briefed about the administrative investigations in June 2002 by Barbara, Parry, and Reynoso. He had reviewed the final version of the Post Powers Plan. He knew the three investigations were to investigate violations of the PBSP force policy, and he should have understood the focus of the investigations was administrative misconduct and discipline. Despite this, Gaultney testified he did not consider the Post Powers investigative plan for administrative discipline when the recommended the case be referred to the district attorney. (Gaultney Tr. 827)

   Gaultney's misconduct is worsened by the fact that the ELU, under his supervision, has no written policy concerning when to "go criminal" on an administrative investigation. Furthermore, Gaultney failed entirely to document the reasons why he made this decision. Under oath on November 21, 2003, Gaultney admitted he had not looked at the applicable California Penal Code section when he referred the case to the district attorney. (Gaultney Tr. 840). California Penal Code § 118 is attached as Exhibit 53. On its face, it appears the statute applies only to oaths "by law of the State of California." From a practical perspective, given its workload and budget shortfalls, the chances that a federal court perjury claim would receive attention by the San Francisco District Attorney's Office is nil.

   Finally, the Special Master finds that Gaultney was not entirely truthful when testifying. Contrary to his recollection at the hearing (Gaultney Tr. 824 & 827), he did discuss the Post Powers investigations with the CCPOA. Indeed, Mr. Gaultney discussed the Post Powers interviews at PBSP with the CCPOA's Chief Counsel, Benjamin C. Sybesma. See the e-mail attached as Exhibit 54.

   The testimony does demonstrate, however, that both attorneys, Gaultney and Barbara, believed Page 15 there was significant evidence against Jones. For example, Gaultney made the referral to the D.A. because there was reasonable cause to believe perjury had been committed and most cases are submitted to the district attorney on reasonable cause (Gaultney Tr.826) On the date of the meeting, March 20, 2003, Barbara believed that there was evidence "beyond a reasonable doubt" concerning the guilt of Correctional Office Jones in the Chester stabbing incident. (Barbara Tr. 67, 68, 112) Barbara also believed he could win the case (Barbara Tr. 113).

   After leaving Gaultney's office, investigator Ballard dutifully opened a "criminal" internal affairs case concerning Correctional Officer Jones. (Ballard Tr. 321; Exhibit 16) Ballard then called Lt. Yax and informed him the case was going criminal (Yax Tr. 413). Ballard also called Christine Albertine of the CCPOA and left her a message on March 24, 2003, stating: "I am canceling our interviews. I am not doing any interviews. I am not giving you any documents and I am taking at least one case criminal." (Ballard Tr. 326-327).

  J. The Divergence of Testimony Concerning the Events of March 24, 2003 to March 27, 2003.

   1. Introduction.

   Seven days after Robert Gaultney decided to file criminal charges against Officer Jones, a meeting was held in the Office of the Director of Corrections, Edward Alameida, where the decision was made to shut-down the three investigations and prepare a "fact finding" letter to the Special Master that emphasized only the negatives of each case. The attendees at the meeting included Ballard, Barbara, Parry, Moore, Alameida, Tristan, Kathy Kinser ("Kinser"), and Legal Affairs attorney Beaty.

   There are two very different versions of what transpired between March 24, 2003 and March 27, 2003. The testimony at the Special Master's hearings differed dramatically depending upon the job position of the witness. The investigator and the lawyer directly involved in the Post Powers investigations, Bob Ballard and Joe Barbara, testified one way. Alameida, Tristan, and Kinser, collectively referred to as "The Directorate," had a different recollection.

   All witnesses, however, agree that it was an extraordinary event to be called to the Director's Office to discuss an internal affairs investigation. For example, Moore testified that the Post Powers investigations were the only investigations where he met with the Director about a pending case and thereafter closed the case before it was completed. (Moore Tr. 169-170) Barbara had met with Director only once before, concerning the David Lewis case. (Barbara Tr. 84) Ballard had never met Director Alameida concerning a work-related matter, and was apprehensive about being called to the Director's Office. (Ballard Tr. 392). Even Gaultney, the Assistant Chief Counsel over the Employment Law Unit, who was not invited to the meeting of March 27, 2003, could not recall ever being called into the Director's office to discuss pending staff discipline. (Gaultney Tr. 839)

   2. The Testimony of the Investigators and Attorney Directly Involved in the Post Powers Investigations.

   a. Bob Ballard, OIS Investigator.

   On March 25, 2003, Investigator Bob Ballard was in the 19th floor hallway of the United States District Court for the Northern District of California waiting to testify in another case. Ballard was informed by two other investigators, Bryan Kingston and Frank King, that his supervisor, Thomas Moore, was attempting to get in touch with him. Frank King told Ballard that Moore was looking for him because the Page 16 Director wanted to talk to him. (Ballard Tr. 327)

   Ballard called Moore while he was still in San Francisco. Ballard described the conversation as follows: "[a]nd right off he said, the Director wants to talk to you. Do you know why?" (Ballard Tr. 329) Moore then asked Ballard about the status of the cases, and Ballard informed Moore that he went criminal with one and was not giving the union any documents. Moore asked for an explanation. Ballard told him that Barbara and Gaultney had made the decision to go criminal. Moore told Ballard they would meet with the Director on Thursday. He told Ballard to come to his office early, with Barbara, so they could talk before meeting with the Director. (Ballard Tr. 330). Ballard called Barbara about the meeting. (Ballard Tr. 332).

   On March 26, 2003, Ballard received an email request from Moore requesting that he show up at 3:00 or 3:30 on March 27th to meet about a confidential matter. Ballard and Barbara discussed the e-mail, commenting about how shortly after Ballard informed the union he was taking the case criminal, the Director of Corrections wanted to see them. (Ballard Tr. 333, 338)

   Ballard, Barbara, and Moore met on 3:00 p.m. on March 27, 2003. Moore asked Ballard to bring him up to speed on the cases. Barbara told Moore that Schembri was a credible witness. Ballard had the feeling that Moore was not happy with the decision to take the Jones case criminal. Brian Parry showed up right before they were to go into the Director's office. (Ballard Tr. p. 335-336)

   The meeting in the Director's Office began late. Beaty was the last to arrive. It started with Alameida asking, "Okay, how did we get here?" Ballard and Barbara explained what was going on with the cases but when Ballard attempted to show the Director the letters from the union, both Alameida and Tristan "looked up and away." (Ballard Tr. 343-345) Beaty asked if any of the allegations were true. Ballard said they are all true. The Director said, "How can you say that?" Ballard explained it was because his standard was a preponderance versus reasonable doubt. p. 346: 14-23. Tristan then made a statement about prison gang leader Joe Morgan, which Ballard interpreted as questioning his statement that all of the allegations were true. An exchange of words followed. (Ballard Tr. 346-347)

   Alameida wanted to know where they go from there. Barbara said, "Look, I can take these cases. I've had worse." Alameida became upset and he slammed his fist and said, "That's the problem with all these cases, we should never have had them in the first place." Alameida asked, "How do they go away?" Someone suggested closing the cases with a fact finder and Alameida said, "Let's go with that." It was discussed that the fact finder would state the negative points of the case. (Ballard Tr. 347-348) Barbara asked about how the Special Master would take the decision. It was decided that Parry would inform the Special Master. Ballard understood that he was to write the fact finder letter. (Ballard Tr. 349-350)

   On March 31, 2003, Moore left Ballard a message saying that Alameida wanted to know where the cases were at. (Ballard Tr. 353; Exhibit 1). Ballard completed the fact finder letter on April 1, 2003. Moore reviewed the letter and told Ballard he would send it up the chain of command. (Ballard Tr. 354) Moore did not tell Ballard to prepare formal IA reports. (Ballard Tr. 357) The fact finder letter that was prepared for the Special Master focused only on the negatives about each Post Powers investigation. (Ballard Tr. 359)

   b. Joseph Barbara, ELU Staff Counsel

   Joe Barbara was contacted by Ballard concerning the meetings of March 27, 2003. (Barbara Tr. 78) Prior to going to the meeting in the Director's Office, Barbara and Ballard attended a pre-meeting with Moore. Moore specifically wanted to discuss the Chester case, expressing concern that the ELU was going criminal. (Barbara Tr. 81) Page 17

   Barbara characterized the meeting with the Director as focusing solely on the Chester incident, the case involving Correctional Officer Jones that Gaultney recommended be referred to the San Francisco District Attorney. (Barbara Tr. 85-86). Barbara believed he could win the Chester case on March 27, 2003, testifying that he's taken worse (Barbara Tr. 85). He described his conduct and that of Ballard as neither aggressive nor passive, just presenting the facts. Barbara and Ballard were not defeatist in their discussions with the Director. (Barbara Tr. 89-90) Barbara testified adamantly that Alameida was told that ELU planned to go criminal concerning Correctional Officer Jones (Barbara Tr. 86, 90).

   Barbara described the course of the meeting as follow: Ballard was asked whether any of the allegations against the subject officers were true, Ballard responded that everything was true; thereafter, the Director slammed his fist on the desk. Alameida's response was described as follows: "[h]is response basically was that, that's a problem with these investigations is that they are thrown up in the air and we just go forward with the case." There was also an exchange between Tristan and Ballard, wherein Tristan made reference to prison gang leader Joe Morgan; Barbara, however, ignored the exchange. (Barbara Tr. 87-88, 123). After additional discussion, Alameida asked something along the lines of "how did we get here?" Parry explained the background of the cases to Alameida. (Barbara Tr. 130) The Director then made his decision.

  

Special Master: After the director slammed his hand and said, "this is the problem with these cases," then what did he say?
Mr. Mather: Objection, hearsay.
Mr. Barbara: Let's make it go away, basically. (Barbara T. 90)
   A discussion ensued concerning how to make the cases go away. "[I]t was presented to us what are the negatives in the case, present the negatives in the case." Ballard was assigned the task of preparing a "fact finding" letter to the Special Master, but Barbara, Gaultney, Beaty and Moore also reviewed the letter. Ballard was told to emphasize the negatives in his letter to the Special Master. Ballard did not prepare a formal IA report because of the decision at the March 27, 2003 meeting. (Barbara Tr 90-91, 94, 100, 104)

   c. Brian Parry, Retired Annuitant.

   Brian Parry was working in LEIU as a "retired annuitant" in March 2003. He received notice of the March 27, 2003 Director's Office meeting via e-mail. (Parry Tr. 418-420, 438). A few minutes before the meeting, Thomas Moore called Parry and asked him to come upstairs. When Parry arrived Moore and Ballard were on their way to the Director's office, so Parry went over with them. Parry did not participate in the pre-meeting between Ballard, Barbara, and Moore, and did not know why Moore asked him to come to his office. (Parry Tr. 440) Parry recalls that the Director was late. (Parry Tr. 440) The meeting began with Ballard giving a briefing on the cases. Barbara also chimed in. Parry did not recall whether or not it was made clear they were planning to go criminal with the Chester case. Parry testified that Ballard did have documents from the CCPOA that he placed on the table. (Parry Tr. 443-444) Parry did not remember Alameida's reaction when Ballard showed him the letters from the CCPOA; nor did he recall David Tristan making a reference to Joe Morgan. (Parry Tr. 452) The focus shifted to the Chester case and Parry remembers Barbara saying he could put the case on but he could not win it. (Parry Tr. 443-444). Parry remembers Alameida reacting, he pushed away from the table and said something like, "Well, that's the problem, why are we going to put on cases that we can't win."

   Parry recognized that Barbara realized Alameida was getting angry. Parry described the Director's reaction as being frustrated. Following Alameida's reaction, there was a discussion as to how the cases Page 18 would be finished-up. It was not Parry's idea to close the cases out as a fact finder. (Parry Tr. 445). In response to the Special Master asking: "Did you ever ask, why am I here?" Brian Parry responded:: "I thought it. It wasn't my case anymore. I didn't have anything to do with it anymore, but I felt Tom Moore dragged me into it. Why, I don't know, but I was there." (Parry Tr. 446) "Then I think Agent Ballard was given direction to close it out with a fact finder, and I think that's the way it was left. When I left there, I am not so sure that I felt Ballard had been given clear direction." (Parry Tr. 446)

   Parry was asked to contact the Special Master about the decision made to close down the investigations. Dennis Beaty made this suggestion, after which Alameida said, "Brian would you do me the favor, call Mr. Hagar and tell him it's my decision is [sic] insufficient evidence to go further on these cases." Parry was also asked to contact CCPOA Vice President Chuck Alexander and tell him about the decisions. Parry left Alexander a voice mail explaining they were not going further on the cases because of insufficient evidence. (Parry Tr. 448 & 450) Parry called the Special Master a day or two later.

   2. The Testimony of the Directorate.

   a. Edward Alameida, Director.

   Alameida testified that he was contacted by CCPOA Vice President Chuck Alexander in mid March. He was alone in his office when he received the call. Alexander spoke about three different subjects; fire camp uniforms for staff, employee compensation for a correctional officer who had been in Iraq, and the Post Powers perjury investigation at PBSP. Alexander asked whether the Director knew the status of that case, to which Alameida replied "no." (Alameida Tr. 696-698) Alameida did not recall whether he indicated to Alexander that he would look into the situation, nor did he document the call or receive anything in writing from Alexander. (Alameida Tr. 698) He considered the question to be a run-of-the-mill, a conversation that lasted "about a minute or two at the most." (Alameida Tr. 803-804)

   Alameida was not aware of Alexander's role as the CCPOA representative during the IA and FBI interviews of correctional officers concerning the Powers/Garcia criminal cases; nor was he aware that Alexander had been investigated by the office of investigative services based on a request from Regional Director Pickett, nor was he aware of the findings of the Knowles/Palmer report, nor was he aware that charges had been sustained against Alexander concerning his conduct during the criminal investigations, nor was he aware that Alexander had sued the CDC concerning the investigation. (Alameida Tr. 700-703) Alameida testified that had he known about the investigation and lawsuit he would not have dealt with Alexander any differently in March 2003. (Alameida Tr. 704)

   Alameida did not know who set up the March 27, 2003 meeting. He received a card from his secretary on the morning of March 27th showing a 4:00 p.m. meeting with OIS. Tristan and Kinser came to the meeting through Alameida's intervention. (Alameida Tr. 706). At the time of the meeting, Alameida did not know what the meeting was about. He was aware that there were problems with the administration of the OIS; however, at the time of the meeting he believed the problems identified by the OIG had been corrected. He subsequently determined that was not correct. (Alameida Tr. 708-709; see also Exhibit 29, filed under seal).

   The March 27th meeting began with discussion about the CCPOA demand for documents and it was decided that the documents should not be provided. Alameida had the impression that a decision was being sought from him as Director as to how the cases would proceed. Although he was not given a written investigative report, he thought the cases were completed. Alameida never specifically asked Moore if the investigation was completed (Alameida Tr. 712-713). Then Ballard and Barbara talked about the merits of the cases that were the focus of the meeting. Two cases did not merit further action, so they focused on Page 19 one case. There were a number of different facets of the case that were discussed in detail, e.g. a witness was out of state, an inmate's mental health capacity, and conflicting testimony between officers in a control booth. The personnel at the meeting also discussed why the U.S. Attorney chose not to prosecute the cases, as well as the recanting of testimony. (Alameida Tr. 714). Alameida asked all of the meeting attendees if there were any reservations about not proceeding with the case. He made the decision not to proceed, he is the ultimate decision maker. (Alameida Tr. 717).

   Alameida did not recall Tristan making a reference to Joe Morgan, he did not recall an argument between Ballard and Tristan. He did recall Barbara saying he didn't believe he had a winnable case. Alameida did not ask why the case was brought to him rather than Warden McGrath. He assumed it was presented to him as Director because it was high profile. He did not know about the Post Powers Plan. No one told him that the Post Powers Plan called for the case to be referred to the Warden of the institution where the employee worked. (Alameida Tr. 714-716) The cases were not presented to him in terms of the allegations being sustained or not sustained, and he did not ask for the cases to be presented to him in those terms because he did not call the meeting. (Alameida Tr. 720-721) Had a potential criminal matter been brought to his attention, he would have asked who made the recommendation. If that person was not at the meeting, he would have halted the meeting and had the recommending party join the meeting. If that person could not join the meeting Alameida would not have made the decision he did without first speaking to that person. Alameida was not aware that Gaultney had referred the Chester case to the San Francisco County District Attorney until 3 months later. (Alameida Tr. 805-807; 728). If Alameida had known he had eight weeks rather than two weeks before the POBAR statute of limitations expired, he would have handled the matter differently. There would have been more opportunity to cull out the issues associated with the case if there were any. It may not have made a difference concerning the actual decision, but they would have had more than forty-five minutes to discuss the investigation. (Alameida Tr. 811-812)

   Once the decision was made not to go forward with the case, a discussion ensued concerning how the decision should be communicated to the Special Master. Beaty mentioned that the Special Master needed to be contacted. There was no discussion to emphasize the negatives of the case. (Alameida Tr. 718-719) The decision was made that Parry would contact the Special Master. Alameida also instructed Parry to contact Alexander. Alameida instructed Parry to contact Alexander because Alameida thought that he should respond to Alexander's earlier inquiries. Specifically, Alameida told Parry, "Would you please contact Chuck Alexander and let him know the outcome of our discussions?" (Alameida Tr. 724) Alameida did not instruct the investigators to provide the Special Master with investigative reports because he felt they were appraising the Special Master of the outcome. He expected a formalized investigative report would be done and transmitted in due course, and that the letter sent to the Special Master was just an initial communication. (Alameida Tr. 719-720)

   b. David Tristan, Chief Deputy Director.

   David Tristan retired from the CDC in June 2003. In March 2003, he was the Chief Deputy Director of field operations, with administrative responsibility for the institutions division, parole, and health care services (Tristan Tr. 853-855).

   Tristan arrived at the March 27, 2003 meeting with Alameida and Kinser. The meeting began with Moore asking that the Director be briefed on the status of the cases and turning the meeting over to Ballard and Barbara. Ballard and Barbara presented the strengths and weaknesses of the cases in a general sense, it was not a briefing in terms of specifics. The only case for which Tristan remembers evidence being discussed was the case involving the assault on inmate Chester. The Director did not make the statement, Page 20 "how do we make these cases go away?" (Tristan Tr. 864) Tristan did not make a reference to Joe Morgan during the meeting. (Tristan Tr. 859-860) There was no discussion of any witness interviews that were or weren't held. (Tristan Tr. 859) Someone asked Ballard whether or not the case could be proved and Ballard responded by stating that perjury had occurred, but it would be difficult to prove. Someone also asked whether Barbara could present the case and Barbara replied he has presented worse. (Tristan Tr. 856-858) Tristan was under the impression that the evidence in the cases was very weak. At the end of the meeting, the Director asked everyone in the meeting individually whether they should move forward with adverse action on the cases. The Directorate, without exception, stated the cases should not go forward. Ballard and Barbara remained silent. (Tristan Tr. 861-863) Someone at the meeting said the Special Master should be informed of the decision. The Director asked Moore to write a letter to the Special Master, and asked Legal to help with the letter. There was no discussion as to what the letter should say. The Director asked Parry to inform the union. (Tristan Tr. 864-865)

   Mr. Tristan testified there was no mention of specific documents being requested by the CCPOA at the meeting, there was, however, a discussion of a request for documents. He does not know why the Director did not ask for a written investigation report. He acknowledged the CDC rules that require an investigation to have a written report at its conclusion. (Tristan Tr. 866-867) It wasn't until after the March 27 meeting that Tristan found out that the investigations had not been concluded. In retrospect Tristan knows there should have been a written report on the investigation before a decision was made. (Tristan Tr. 884) He did not ask why the Directorate was involved in the cases. No one told Tristan the investigations were complete, nevertheless, he made an assumption that they were. (Tristan Tr. 881) Considering the high profile of the cases, Tristan did not know why he hadn't heard anything about the cases before the March 27, 2003 meeting. He did not get the details about the evidence that had been presented or discovered because he took everything that was being presented at face value. He did not realize the magnitude of the problem until the Special Master's Post Powers hearings began. Only then did Tristan start asking specific questions about the three Post Powers internal affairs investigations. (Tristan Tr. 871-872) Tristan has determined that no case conferences were held by Moore concerning the investigation, and no one was monitoring the cases. He believes that even if a case does not proceed criminally, it does not absolve the CDC of the responsibility to handle it administratively. (Tristan Tr. 884-885) He now knows that there are systemic problems with OIS. His knowledge of these problems, however, stems from the Post Powers hearings conducted by the Special Master, department reviews, the OIG's review, senate hearings and a review by Mike Pickett. Some of Pickett's findings indicated the corrective actions that had been presented to the Director from Moore were not in place. (Tristan Tr. 885-886)

   c. Kathy Kinser, Chief Deputy Director.

   Kinser was notified by computer scheduling about the March 27, 2003 meeting in the Director's Office. The meeting appeared on her calendar as an OIS case review (Kinser Tr. 232-235) She perceived the meeting as requiring a decision whether to go forward on three cases. At the time of the meeting Kinser did not know of the CDC's Post-Powers Plan. (Kinser Tr. 226-227) The plan was not discussed at the meeting. (Kinser Tr. 228) The meeting involved Ballard and Barbara describing the three cases; however, it was not made clear to Kinser that the investigations were not yet completed. She did not know of the decision to go criminal. (Kinser Tr. 236).

   In Kinser's opinion, the Directorate should not have held meeting if the investigations were not completed. (Kinser Tr. 237) Kinser did not recall Alameida's exact words when he made the decision not Page 21 to go forward, did not recall a discussion about providing the Special Master with a letter containing more negatives than positives, did not recall a discussion between Tristan and Ballard about Joe Morgan, and she did not recall Alameida putting his fist into his hand or being frustrated. (Kinser Tr. 242-246). She admits Alameida "challenges" participants at meetings (Kinser Tr. 245) and recalled that Parry was to contact the Special Master after the meeting. (Kinser Tr. 243) Kinser testified that the Special Master received an inaccurate memo about three very important investigations that were never completed. (Kinser Tr. 246-247).

   3. The Testimony of Dennis Beaty and Thomas Moore.

   a. Dennis Beaty, Legal Affairs Attorney,

   Beaty came to the meeting in the Director's Office because of a telephone message from Moore on his answering machine. He denied being responsible for setting up the meeting with the director. (Beaty Tr. 648-650) Beaty arrived at the meeting approximately 20 minutes late. He summarized that portion of the meeting he observed as follows: there were a lot of comments about the evidence and there was no real confidence that there was a "criminal" case in view of the evidence. Beaty attempted to get a consensus that the case was a good administrative case, where the standard is a preponderance of the evidence rather than beyond a reasonable doubt. (Beaty Tr. 651-652) He recalled Barbara's statement that he had taken worse cases to trial; however, Beaty had the impression that Barbara meant he would give it the "old college try" but the case was not strong. (Beaty Tr. 654) According to Beaty, Alameida's reaction was to grimace and back away from the table while holding his hands in his fist, and then asked everyone in the room what they thought. There was a consensus among the Directorate not to proceed on the cases for lack of evidence. (Beaty Tr. 654-655)

   At the time of the meeting, Beaty thought the investigations were complete. It was decided that Parry would inform the Special Master that they were closing the investigation. (Beaty Tr. 658-659) After the meeting Beaty walked out with Ballard and Barbara. Ballard and Barbara were a bit disturbed and didn't seem happy with the decision to close out. Beaty testified Ballard and Barbara seemed "unsettled." (Beaty Tr. 661) Beaty did not remember who was to prepare the letter to the Special Master, did not recall Parry being instructed to call Alexander, did not recall a statement that referenced Joe Morgan, did not recall an argument about the difference between an administrator and an investigator, did not recall Brian Parry talking to the director about the Post Powers Plan or hearing the Director say "how did we get here," and he did not see Ballard put the letters from the CCPOA on the table at the meeting. (Beaty Tr. 657, 658, 660, 662)

   b. Thomas Moore, Deputy Director OIS.

   Thomas Moore testified to three different explanations as to why he calendared a 4:00 p.m. meeting for the Director's Office on March 27, 2003. First, he claimed that Brian Parry had contacted him in the hallway of his office and this lead to the need for a meeting (Moore Tr. 155-156) After additional questions, however, Moore retracted this testimony (Moore Tr. 156 at 17-23). Moore then testified that after he and Parry heard the briefing from Ballard and Barbara at the "pre-meeting of March 27th, they realized they had to "brief Mr. Alameida now." Moore had checked the Director's calendar and knew that he was available. (Moore Tr. 159 at 22-25). Finally, Moore also testified that he called Ballard for a status report on March 25, 2003 based on a call from Dennis Beaty, and this lead to the meeting. (Moore Tr. 154, 155). Mr. Moore also testified that "on my recall" the Director didn't contact him to set up the meeting. (Moore Tr. 155)

   At the meeting itself, Moore testified that Mr. Ballard was not passive, indicated he had some work Page 22 to be done and the case would be difficult to prove, while Barbara said it was a bad case but that he had worse, it was 50/50. (Moore Tr. 167). According to Moore, Ballard stated at the meeting that "I think there's perjury here but I can't prove it." (Moore Tr. 195-196). Moore testified he did not know one of the cases had been referred for criminal prosecution, and that the referral to the D.A. was not mentioned at the meeting. He also did not. recall Alameida hitting his hand in his fist. (Moore Tr. 190 & 166) Moore believed they had done enough to draw the conclusion that the cases had no merit, although he also admitted he did not tell the Director the investigations were not completed. (Moore Tr. 168, 193-194). He testified it appears the Special Master "got the negatives" in the close out letter (Moore Tr. 175). Moore expected a formal closure report, the letter to the Special Master was only a cover memo (Moore Tr. 177-179, 203)

  K. The Special Master's Credibility Determination.

   The Special Master finds the testimony of Ballard and Barbara to be credible. The testimony of Edward Alameida and Thomas Moore, on the other hand, is not believable. In addition to making this assessment based on the demeanor of the witnesses and their credibility during direct and cross examination, the Special Master considered the following factors:

   1. Ballard and Barbara testified about details. It was apparent, from their perspective, that the events of March 27, 2003 were traumatic. They recalled critical events with more specificity than did Alameida, Moore, Kinser, and Tristan. To a significant degree, the testimony of Brian Parry supported Ballard and Barbara's versions of the events of March 25-27, 2003. Ballard's testimony is also consistent with his contemporaneously prepared investigation summary (Exhibit 1). Exhibit 1 contradicts Thomas Moore's version of events.

   2. Ballard and Barbara testified against their career interests. They had nothing to gain by contradicting the statements of the Director of Corrections. Ballard and Barbara admitted being involved in the preparation of a misleading letter to the Special Master. There was no reason for either man to make admissions relating to the letter except to testify honestly, regardless of the consequences. Alameida, and Moore, on the other hand, had much to gain by attempting to convince the Special Master that the meeting in the Director's Office of March 27, 2003 did not come about through the influence of the CCPOA.

   3. It is difficult to believe Alameida's, Moore's, Kinser's, and Tristan's version of what transpired at the meeting of March 27th. Even the most gross incompetence by the Directorate does not excuse their collective failure to inquire whether the investigations were complete. Nor does mere negligence explain the decision to shut-down the investigations without consulting the hiring authority at PBSP, the failure to ensure the preparation of a formal IA report, and their complicity with preparing a misleading letter to be sent to the Federal Court. (Exhibits 18 & 19)

   4. Mr. Alameida's explanation about his conversation with CCPOA Vice President Chuck Alexander is not believable. Mr. Alexander is an aggressive and intelligent advocate for correctional officer interests. He has been at the forefront of the CCPOA resistence to both the State and Federal investigations of Powers, Garcia, and Lewis for more than a decade. Alexander was investigated by the CDC. Charges were sustained for inappropriate and questionable activity under the guise of Union business, for preparing State Personnel Board requests for adverse action with malice, and for misusing his authority as CCPOA representatives to access confidential information. (Exhibit 26) It is not believable that Alexander would call the Director of Corrections, ask about the status of investigations directly related to the Powers and Garcia cases, and simply accept Mr. Alameida's statement that he had no knowledge of the matter. Alameida's claim that he suddenly remembered a brief telephone conversation with Alexander Page 23 that had taken place weeks earlier, and based on this memory, told Parry to call the CCPOA to inform Alexander the investigations had been shut down, is also not believable.

   5. Moore told Ballard that the Director wanted to see him when he contacted Ballard by telephone on March 25, 2003. OIS investigator King, who was also called by Moore on March 25th, likewise testified that Moore made specific reference to the Director when he received a call from Moore looking for Ballard. "We were at this courthouse outside this courtroom on another case involving Pelican Bay, and I received a phone call from Mr. Moore asking me if I knew where Agent Ballard was. I said he's here somewhere in the courthouse, he may be testifying. He said, `I need to get a hold of him, the Director needs to speak with him." (King Tr. 948) Moore and Ballard discussed the decision to file criminal charges on March 25, 2003 (Ballard Tr. 331) Moore also referenced the decision to go criminal when he called Barbara and told him to attend the meeting in the Director's office. (Barbara Tr. 81 at 5-6) Moore specifically wanted to discuss the Chester incident, the case that was being referred to the District Attorney, at the pre-meeting of March 27th.

   The weight of the evidence, and the circumstances surround the meeting of March 27th indicate that Thomas Moore set up the meeting at the request of Edward Alameida. Moore would have known that Alameida reserved 4:00 p.m. to 5:00 p.m. every afternoon for time to work on his "in-basket," and for meetings that need to be arranged on short notice. (Clifford Tr. 979; Exhibits 32 & 42). Alameida was called by Alexander not a few weeks prior to the meeting, but a day or two prior, after Ballard left a message on CCPOA attorney Christine Albertine's answering machine on March 24, 2003 about the decision to file criminal charges. When Moore contacted Ballard, who was in Federal Court, and determined Ballard's and Barbara's availability, he set up the meeting with the Director through his secretary Dottie Perkins. (Perkins Tr. 961, 963; Clifford Tr. 978-979; Exhibits 32, 39, 40)

   6. There are numerous inconsistencies in the testimony of the members of the Directorate concerning critical aspects of the March 27, 2003 meeting. For example, inconsistencies exist concerning the Directorate's collective recollection of whether Bob Ballard showed Alameida and Tristan the CCPOA letters from Albertine. Inconsistencies also exist concerning whether Alameida told Parry to call Alexander. In addition, the recollection of events by Kinser and Tristan is not as complete as the memory of Bob Ballard and Joseph Barbara. For example, Ms. Kinser responded "I don't recall" or "I do not recall" nine times during her testimony (Kinser Tr. 234:21; 235:22; 242:15; 242:18; 245:23; 246:8; 246:14; 250:24; 259:14). Kinser also testified that it was unclear whether the investigations were completed or not. (Kinser Tr. 276-277) On March 11, 2003, however, Kinser was a recipient of an e-mail from Dennis Beaty wherein Mr. Beaty made it perfectly clear to Moore, Gaultney and Kinser that the cases were not completed. As emphasized by Mr. Beaty: "Blowing the statute of limitations will have major adverse consequences for the Department in the Madrid litigation." Beaty concluded his e-mail by requesting that Moore "make every effort to see that the investigation is concluded quickly and that it is processed expeditiously." (Exhibit 52) Kinser, however, failed to inquire whether the investigations were in fact completed.

   7. The Special Master finds that Thomas Moore testified falsely. His false testimony was in response to critical questions going to the heart of the Special Master's investigation. For example:

   a. Moore testified Ballard was tasked in June 2002 with reviewing transcripts, legwork, and giving a report if there was sufficient cause for the three cases to go forward. (Moore Tr. 143) Moore testified under oath that Ballard had taken time in July and August to review the Powers' criminal case files and was giving periodic feedback. (Moore Tr. 145) These statements are false. Ballard did not conduct any case Page 24 review in June 2002. Ballard did not begin to conduct an internal affairs investigation until he received a 989, and Moore did not prepare the 989 until October 2002. (Ballard Tr. 274-275; Exhibits 4, 6, 7)

   b. Moore testified: "Agent Ballard was not assigned any other cases and I was transitioning his existing cases off of him." (Moore Tr. 140) This statement is false. Moore assigned Ballard to the Lewis case between October 2002 and January 2003, telling him he was to be re-assigned to San Francisco and become the liaison between the CDC and the federal government in assisting with the prosecution of Lewis. The Lewis case was not one that Ballard could take on a part-time basis, and Moore told Ballard the Powers/Garcia cases would be reassigned to someone else. Ballard worked on the Lewis case for about three weeks. The case was eventually reassigned to Joe Reynoso. (Ballard 281-283; Reynosa 514). Thus, not only was Ballard assigned to three Post Powers investigations that were so complicated they were impossible to complete in an appropriate manner in eight months, he was actually removed from the Post Powers cases for several weeks during October 2002 and temporarily assigned to another complicated matter.

   c. Moore testified he called Ballard on March 25, 2003 based on a call from Dennis Beaty (Moore Tr. 154, 172). This statement is false. Beaty did not instruct Moore to call Ballard in March 2003 (Beaty Tr. 649-650).

   d. Moore testified that after he and Parry were briefed about the Post Powers investigations by Ballard and Barbara on March 27, 2003, they realized that they had to "brief Mr. Alameida now." Moore goes on to state that he had checked Mr. Alameida's calendar and knew that he was available. (Moore Tr. 159). This explanation concerning why Ballard and Barbara were suddenly called before the Director is entirely false. Moore arranged the March 27th meeting the day prior, on March 26, 2003. That the meeting was calendared the day prior, on March 26, 2002, and was confirmed by both Moore's and Alameida's secretaries (Perkins Tr. 963-964; Clifford Tr. 979; Exhibits 32, 39, 40). In addition, Ballard received a telephone call from Moore about the meeting on March 25th and also received an e-mail on March 26th about the meeting. (Ballard Tr. 338) Furthermore, Brian Parry did not attend the pre-meeting on March 27, 2003, and had nothing to do with calendaring the meeting with the Director. ("No. it wasn't my case. I wouldn't have set the meeting up with the Director on this." Parry Tr.439) Parry also received prior notice of the meeting from Thomas Moore via e-mail. (Parry Tr. 438) Likewise, Beaty received prior notice through a telephone message. (Beaty Tr. 649-650)

   e. Moore testified that one of the problems with the Post Powers investigations was a lack of supervision by the Special Agent in Charge of the Northern Region, Art Smith. He testified Mr. Smith was inundated with other duties and therefore did not oversee the case in an adequate manner. (Moore Tr. 138) These statements are false. The Post Powers cases were supervised by Thomas Moore himself. Mr. Smith has no supervisory responsibility for the Post Powers investigations. (Grout Tr. 545; Ballard Tr. 276-277, 380)

   8. Alameida seriously undermined his credibility by providing the Special Master with two different and incomplete versions of how the decision was made by the CDC to pay from the criminal defense of former Correctional Officer David Lewis' retrial. The first version occurred in the Fall of 2002 after the Special Master was contacted by Assistant United States Attorney Miranda Kane concerning Lewis retrial. Mr. Kane expressed concerns to the Special Master about the ability of the United States to effectively prosecute the Lewis case after being told by the CDC that Agent Joe Reynoso would not be assigned to assist her. The Special Master had a second meeting with Ms. Kane, Assistant United States Attorney Ismail J. Ramsey, and Agent Joe Reynoso. He was told that the CDC had informed the U.S. Page 25 Attorney that if another agent was assigned to the Lewis case, the agent would not be allowed to sit at counsel's table. Apparently, the agent would have to wait in the hallway for instructions. In addition, the Special Master was told that the CDC would be paying for the criminal defense of Lewis. This decision was contrary to the position taken at the first Lewis trial, when Acting Director of Corrections Steve Cambra made the decision not to pay for Lewis' defense.

   Because of these concerns, the Special Master arranged for a meeting with Alameida in late October 2002. After a series of delays, the Director and Special Master met in the Special Master's office in San Francisco. After the one-on-one meeting, Alameida, the Special Master, and counsel for the parties discussed this issue. Alameida told the Special Master that he had made the decision that the CDC should pay for the criminal defense of Lewis. He stated it was a difficult decision, but one that he felt appropriate pursuant to the terms of recently negotiated CCPOA contract, and because Lewis had been found by a Shooting Review Board ("SRB") to have shot inmate Long pursuant to CDC policy. He emphasized he made the decision after discussions with his staff, including attorneys. Alameida also stated his belief that the CDC should appear "neutral" at the trial, and it would not be appropriate to have a CDC investigator sitting with the prosecution because it might send a signal that the CDC believed Lewis was guilty. Both Alameida and the CDC's attorneys told the Special Master that no documents had been prepared concerning the decision. The Director did agree to re-visit the issue of assigning Reynoso to the Lewis case. Thereafter, Alameida and Beaty met with Ms. Kane. Some time later Reynoso was re-assigned to the Lewis prosecution.

   During his testimony under oath on November 21, 2003, however, Mr. Alameida told an entirely different story. Alameida testified that the Youth and Adult Correctional Agency ("YACA") asked him to look into a request for representation in the Lewis case. Thereafter, Alameida had conversations with Parry and maybe Barbara about the case. He sought the advice of counsel and presented all of the information he had gathered to YACA who then made the decision to pay for Lewis' representation. His viewpoint was not to represent Lewis. To the best of Alameida's knowledge, the person who made the decision to pay for Lewis' defense was Peter Jensen ("Jensen"), the person with ultimate authority at YACA at the time. (Alameida Tr. 739). Mr. Alameida provided no explanation for the version of events he told the Special Master approximately one year before. Both of these versions, moreover, are inconsistent with evidence relating to the decision to fund Lewis' second defense, as discuss in section IV. Q below.

   9. Summary.

   Given all of the above, and after weighing the evidence and the credibility of witnesses, the Special Master concludes that the weight of the relevant evidence demonstrates that the meeting of March 27, 2003 was calendared by Thomas Moore in response to a request from Edward Alameida-after Alameida received a telephone inquiry from CCPOA Vice President Chuck Alexander shortly after Ballard notified the CCPOA of the decision to go criminal in the Chester case on March 24, 2003. Thereafter, the Director shut-down the Post Powers investigations at the March 27, 2002 meeting. The Directorate and Thomas Moore instructed Ballard and Barbara to send a letter to the Special Master that contained only those facts which supported the Director's decision, a letter that emphasized only the "negatives" of each case.

  L. The Department of Corrections' Failure to Comply With the Post Powers Administrative Investigation and Discipline Plan.

   The evidence is undisputed that the CDC failed to comply with every critical element of the Post Powers Investigative Plan and Disciplinary Review Process plan submitted to the Special Master. (Exhibit 2). Rather than monitoring the plan, Robert Gaultney simply ignored it, and recommended that one of the Page 26 three investigations "go criminal." Rather than assigning a team of investigators, only one was assigned. Neither the investigator nor the attorney assigned to the case were told about the plan. Department protocols and procedures were not followed. Instead of completing the investigation in six months, it did not start for four months. The investigations were not completed within the POBAR statute of limitation, thereby precluding employee discipline. Finally, instead of referring completed cases to the Pelican Bay Warden, as called for by the plan, the cases were shut down by the Director of Corrections. No one disputes these facts; indeed Alameida, Tristan, and Kinser admit that problems and misunderstandings adversely affected their decision making process on March 27, 2003. (Alameida Tr. 708-709, 714-716, 805-807, 811-812; Tristan Tr. 866-877, 884, 871-872, 885-886; Kinser Tr. 226-227, 236, 246-247)

   While the Special Master is convinced that Barbara Sheldon prepared the plan with the best of intentions, in terms of its implementation, the CDC's submission to the Special Master was a sham. After the retirement of Brian Parry, no one at the highest level of the Department displayed either the will or competence to put the plan into effect. Moore, Gaultney, and the Directorate knew that the criminal acts of Powers and Garcia implicated the most serious of problems at Pelican Bay. Despite this knowledge, they did nothing to pursue three necessary administrative investigations. Collectively, their failure is more than mere negligence, it is nothing less than the awareness of a serious security related problem and the subsequent deliberate disregard of that problem.

  M. The Department of Corrections' Failure to Comply with Department Operating Procedures and OIS Policies Concerning the Four Post-Powers/Garcia Internal Affairs Investigations.

   The evidence is also undisputed that the CDC failed to comply with almost every critical DOM section and OIS policy during the Post Powers administrative investigations. (Exhibit 20) The cases were started in an untimely manner, the 989's were not adequate, there were no case conferences, and no supervision by Moore. (Moore Tr. 135) None of the cases were completed, none complied with OIS protocols, and every critical step of the normal investigative process did not take place. (Moore Tr. 146-150; Barbara Tr. 26-27; Parry Tr. 447) Even worse, the cases were shut-down by the Director of Corrections without a formal report, and without informing the hiring authority at Pelican Bay State Prison.

  N. The Department of Corrections' Failure to Comply With the Court Ordered PBSP Use of Force Remedial Plan.

   1. Introduction.

   As explained at page 4 above, under the Court approved remedial plan, all managers and supervisors involved with PBSP investigations and discipline have the responsibility to investigate incidents of abuse of force, including incidents where correctional officers cover-up, withhold, or act in concert with others to prohibit factual information from being reported as required by the Use of Force Policy.

   2. Defendants Violated the Remedial Plan By Failing to Adequately Investigate the Perjury Allegations Against Correctional Officers Jones, Matlock, and Tuttle.

   Uncontradicted evidence proves that defendants violated the PBSP remedial plan. Simply stated, the CDC failed to investigate the evidence they obtained from the U.S. Attorney that Correctional Officer Jones, Matlock, and Tuttle perjured themselves during the Powers/Garcia criminal case. The investigation began four months late, it was inadequately staffed, Department protocols were ignored, Moore failed to Page 27 manage the investigations, and the Director of Corrections shut-down the investigations prior to their completion. As Brian Parry testified:

Special Master: Have you ever had a Director before March 27, 2003 issue instructions that a pending IA would be closed out through a letter?
Brian Parry: Not that I recall.
Special Master: And have you ever been at a meeting with a director about a pending IA case when, after the Director made his decision to end the investigation, you were instructed to call the union representative?
Brian Parry: No. I don't ever recall that before. (Parry Tr. 472: 9-17; see also 472: 21-25).
What happened in the Director's office on March 27, 2003 meeting was reminiscent of what used to take place at Pelican Bay State Prison.
It is clear to the Court that while the IAD goes through the necessary motions, it is invariably a counterfeit investigation pursued with one outcome in mind: to avoid finding officer misconduct as often as possible. As described below, not only are all presumptions in favor of the officer, but evidence is routinely strained, twisted or ignored to reached the desired result . . . the IAD applies standards more consistent with criminal than civil or administrative proceedings. Defendants' witnesses testified that an inmate allegation of excessive force will only be sustained if the wrongdoing was "clearly prove[d] with certainty," or "beyond a reasonable doubt." Long Tr. 17-2801; Beckwith Tr. 17-2764. Suspicions that officers are withholding information are ignored unless such misconduct can be "absolutely prove[d]." Beckwith Tr. 17-2752-53. As Nathan observed, "If the inmate must establish the misuse of force `conclusively' and by evidence that excludes every `possibility' other than officer misconduct, he will never prevail." Nathan Decl. at 88.
Second, not only are the above standards exacting on their face, but the manner in which they are applied at Pelican Bay makes them almost impossible to meet. Internal Affairs routinely minimizes or ignores evidence adverse to staff, and strains to find explanations (however implausible) that can be used to reject allegations of excessive force. Thus, as long as some theoretically possible version of events exculpates the officer, it will be relied upon to avoid a finding of culpability, even though it may be highly improbable and lack any credible basis in the record. Madrid v. Gomez, supra, 889 F. 1146, 1192-93 (N.D. Cal. 1995)
   The March 2003 violations of the remedial plan are especially serious because the underlying offenses involve the most egregious form of the code of silence; lying in Federal Court. Furthermore, the CDC employees responsible for the failure to adequately investigate Officers Jones, Matlock, and Tuttle were the Director of Corrections, Edward Alameida, and his highest ranking investigator, Thomas Moore. Nine years after the Order of January 10, 2003 it is apparent that top officials of the Department of Corrections neither understand nor care about the need for fair investigations, nor are they likely to impose discipline in the face of CCPOA objections.

   3. Defendants Violated the Remedial Plan By Failing to Prepare a Report of the Investigation on the CDC Forms 989 A and B. Page 28

   Defendants further violated the remedial plan by failing to close out the four open internal affairs investigations with a formal investigative report. The evidence supporting this factual finding is not in dispute: instead of completing a Form 989 A and B report, the CDC sent a misleading and false letter to the Special Master.

   While a fact finder letter can never substitute for a formal internal affairs report under either the remedial plan or the DOM sections that pertain to OIS, there are circumstances where a fact finder level of review is an appropriate form of investigation. However, as pointed out by Dr. Maher in Exhibit 49, a fact finder investigation under the remedial plan requires the following:

1. The allegations made
2. An explanation of the incident
3. The written or verbal statements of the witnesses
4. The health care information
5. A conclusive recommendation.
   Exhibits 18 & 19 contained the allegations and an explanation of each incident. However, they did not contain written or verbal statements of the witnesses, the health care information, or a recommendation, and they do not conform with the remedial plan. Use of Force Procedures Reporting Allegations of Unnecessary or Excessive Use of Force, Section I.C.

   4. Alameida and Moore Violated the Remedial Plan By Organizing and Condoning a Cover-Up Concerning the Shut-Down of the Post Powers Investigations.

   The false and misleading letters sent to the Special Master in April 2003 (Exhibits 18 & 19) violate the Court's use of force remedial orders. The decision to shut down the investigations and subsequently send the Special Master a letter emphasizing only the negatives was an attempt by the Director of Corrections and the Deputy Director of OIS to act in concert with others to prohibit accurate factual information from being reported as required by the Use of Force Policy. Alameida ordered the fact finding letters. Moore not only supervised their completion, he also controlled the actual mailing. In addition, Moore testified that he briefed Alameida about the letters. (Moore Tr. page 185 at 18-21) Consistent with this testimony, Moore's cover letter (Exhibit 18) is dated seven days after the date of the letter signed by Ballard. (Exhibit 19) Ballard's testimony, as well as his contemporaneously entered notes in Exhibit 1 also affirm that Alameida followed-up with Moore at least once to verify the letters were being completed. Finally, neither Moore, nor any member of the Directorate, including Alameida, Tristan, and Kinser, took action to ensure that the requisite internal affairs reports were prepared.

   The errors, omissions, and false statements in Exhibits 18 & 19 are serious. They go directly to the question of whether charges against Correctional Officers Jones, Matlock, and Tuttle should be sustained. Assistant U.S. Attorney Melinda Haag summarized the major inaccuracies in Exhibit 19 as follows: Perez Incident (2nd Paragraph of Exhibit 19)

   The information in the letter concerning this incident is not complete. It fails to include Jim Mather's testimony which, other than the reports themselves, provided essentially all of the evidence in support of the incident at trial. The prosecution did not present any evidence to CDC officials in the meeting in June 2002 that Mr. Perez had a history of mental illness. The government did not call Perez as a witness at trial; they relied solely on Mather's testimony and the reports themselves.

  Chester Incident (3rd Paragraph of Exhibit 19)

   This is not a complete summary of the facts concerning this incident. Prior to his appearance at trial, Officer Manzano had made statements that he did not hear the conversation or did not remember the Page 29 conversation. When Manzano testified at trial, he said he remembered something about it, which was that it had something to do with an inmate in trouble. With respect to Schembri being delinquent in reporting the conversation, he testified that he was troubled by the stabbing and introduced a note he had written and carried in his wallet. Schembri testified at trial that because of the code of silence at the prison that he did not come forward, but when asked four years later in an internal affairs interview, he told the truth.

  Black Incident (1st Paragraph of Exhibit 20)

   The first paragraph of the letter does not completely summarize what Ms. Haag told the CDC representatives in the meeting. It doe not address Powers telling the FBI agents that he had hit Black. It also does not include the testimony regarding Wise and his concerns about the fact that no reports had been written, as well as the conclusions to be drawn from Wise's testimony. (Haag Tr. 776-789)

   Court expert Dr. Patrick Maher's Memoranda entitled "Review of OIA Northern Region April 1, 2003 Fact Finder — Powers/Garcia Perjury Issues" is attached as Exhibit 49. Dr. Maher summarizes the defects of Exhibit 19, and concludes it does not conform to the remedial plan, was an inappropriate method of closing an internal affairs investigation, was misleading and inaccurate, failed to indicate the cases were closed with incomplete investigations, failed to provide any of the evidence that supported the fact there was sufficient evidence to at least warrant the completion of the investigations, and did not meet industry standard for reporting on investigations. The Special Master agrees with each of Dr. Maher's conclusions.

  O. The OIS Failure to Conduct Adequate Post-Powers/Garcia Investigations is Indicative of Serious Systemic Problems the Department of Corrections has Failed to Correct for More Than Two Years.

   There is undisputed evidence that the Department of Corrections' failures with the Post Powers investigation are indicative of serious systemic shortfalls that impact all OIS investigations. In October 2001, the Office of the Inspector General ("OIG") completed an audit/assessment of OIS and found a series of very serious systemic problems that included the following: an inaccurate and unreliable management reporting system, the absence of a system for assessing case priority, inadequate controls to prevent abuse of overtime pay, ineffective oversight of regional offices, inadequate background checks of investigators, failure to conduct background checks of borrowed staff, inadequate staff training, inadequate control over access to the case tracking system, inadequate documentation in case files, inconsistencies among regional offices in rejecting cases for investigation, deficiencies in handling and storing evidence, and deficiencies in armory policies and procedures. (Exhibit 29 — filed under seal).

   The OIG's report was submitted directly from the Inspector General, Steve White, to Alameida. Parry was the acting Assistant Director of OIS when the report issued. He reviewed the report at the Director's request and prepared a responsive letter. Parry agreed with the findings of the Inspector General. (Parry Tr. 457-458) After Parry's retirement, Moore was charged with preparing a corrective action plan to correct the problems found by OIG. Moore's January 21, 2003 report about the status of the corrective action plan is attached as Exhibit 21. The information reported by Mr. Moore in this document is almost entirely false. There has been no real corrective action. Concerning almost every major problem found by the OIG, nothing had changed from October 30, 2001, the date of Mr. White's letter, to July 30, 2003, the date of the first of the Special Master's hearings.

   For example, there is still no approved OIS policy manual available for OIS agents, a problem that has existed since the beginning of the unit. (Grout Tr. 555) Thus, some offices use a six month standard for completing cases, while others attempt to comply with a ninety day standard. There have been changes to the management information system, but it is not much different from the old format. (Grout Tr. 564) There Page 30 are still no written procedures for prioritizing cases, nor is there a standardized policy or procedure to control overtime abuse that exists in all three offices. (Grout Tr. 565-568). There is no formalized plan for training for OIS agents, and while a system for the tracking of training exists, not all offices utilize it. (Grout Tr. 572-573) There are no instructive memoranda to ensure that the three OIS regional offices process category II rejections consistently and properly. (Grout Tr. 574) OIS is not meeting its mandate to review the category I investigations completed by the prisons, and there is no quarterly report to track category I investigations. (Grout Tr. 575)

   One of the OIG's findings has serious public safety implications. The OIG discovered that the CDC has placed an "eleven hour" hour limit on conducting background investigations of potential OIS agents. This limitation may apply to all applicants for California correctional officer positions. Sandy Grout, the Agent in Charge of the OIS's Northern Region, has also served the CDC as the Captain over the background check unit. To her knowledge, the eleven hour limitation has not been corrected. (Grout Tr. 586-589). The California standard for peace officer background checks is forty hours, a minimum established by California Peace Office Standards for Training ("CPOST"). (Grout Tr. 570-571) The Secretary of YACA is responsible for the CPOST standards. Thus it appears that the CDC, a Department within YACA, is not complying with California minimum background check standards established by YACA.

   Important policy considerations mandate the forty hour minimum for background checks for peace officers, including the need to verify the applicants background, his mental health, and possible affiliation with criminal gangs. (Grout Tr. 570) If CDC correctional officers are being hired without adequate background checks, both institutional and public safety have been seriously compromised.

   The Special Master finds that Moore's "corrective action summary" dated January 31, 2003 (Exhibit 21)to be defective on its face. Even a cursory evaluation of the document puts a reader on notice no real corrective actions were envisioned. For example, Moore responds to the OIG's finding about investigation time limits by stating that the DOM has been changed. This statement is false, and reasonable CDC officials should have known it was false. Moore responded to the OIG's findings about problems with management information by stating: "A completion date in December 2002 was targeted but may be delayed if the project requires additional findings and unforeseen problems with other Divisions impacted by the rewrite." It is not clear what Moore actually meant by this statement; however, since his update was provided to Alameida in January 2003, it was obvious the target date was not met. No one in the Directorate, however, questioned this explanation. Concerning the OIG's finding of inconsistent policies, Moore's report was non-responsive, stating: "A review of the operating procedures revealed the three (3) regional offices are fairly consistent but have some differences due to differences in workload, nature of cases, geography, and available resources." Moore's response to the OIG's finding of a Departmentally imposed 11-hour limit on background checks was also non-responsive, stating: "All investigations are completed within 45-days; however, psychological interviews take longer as they are scheduled and controlled by the State Personnel Board." The Special Master finds almost all of Moore's responses to be either inadequate or non-responsive.

   Nonetheless, Alameida and Tristan testified that they were unaware of problems with OIS. They believed, until the Special Master's hearing began, that the corrective actions instituted by Thomas Moore were in place. (Alameida Tr. 709; Tristan Tr. 885-886) The CDC's complete failure to develop and implement an adequate OIG corrective action program after a period of more than two years indicates the State of California is unable to fix the investigation problems that plague the Department of Corrections. Page 31

   P. The ELU Failure to Manage Adequate Post-Powers/Garcia Administrative Investigations and Discipline is Indicative of Serious Systemic Problems With ELU Operations that the Department of Corrections has Failed to Correct for Two Years.

   The Special Master finds the Department of Corrections' failure to complete the Post Powers/Garcia investigations in a timely manner, and its failure to commence discipline, is not an isolated problem. Rather, what happened to the Post Powers investigations are examples of serious systemic shortfalls in the CDC's adverse action discipline process.

   The Special Master previously reported to the Court about the Mayo cases, which involved Medical Technical Assistants at PBSP who were not disciplined for very serious violations of CDC policy because the CDC's investigation and discipline process took more than one year. Because of the Mayo cases, in 2001 the Special Master requested that the OIG conduct an audit of the CDC's adverse action process. Similar to the OIG's findings in the OIS audit, the OIG audit report of March 2002 (which has been filed under seal with the Court), found numerous systemic problems with the processing of adverse action cases, including a lack of coordination between ELU and OIS, inadequate or non-existent policies concerning important issues such as when to file an appeal or how to settle a case, inadequate training for OIS agents and the Employee Relations Officers in the prisons, inadequate tracking of discipline related process, confusion about the POBAR one year statute of limitations, and a lack of clarity concerning the roles and responsibilities of the CDC officials involved with employee discipline. The OIG found that these problems lead to forty percent of all adverse actions being dismissed or otherwise compromised because the CDC was unable to complete the cases in a one year period of time.

   In subsequent reports the Special Master informed the Court of the CDC's effort to develop and implement an adequate corrective action plan, and how the CDC's efforts were beset with untimely actions and inadequate responses. While the Special Master has been assured by the highest levels of CDC officials, and their attorneys, that adequate controls now exist on adverse action cases, what happened with the Post Powers investigations reveals the ELU corrective actions are simply not working. Two years have passed since the OIG issued its report. While the CDC attempts to argue that losing forty percent of cases is mere incompetence, its failure to fix the problem is tantamount to a deliberate decision to continue business as usual, untimely investigations, untimely discipline, and the failure to track and manage casework, despite the findings of the Court and the Inspector General.

   The CDC's failure is not a matter of funding, rather, it represents serious management problems at the Directorate. The solution is not more money, it is a question of will. Similar to the systemic problems with OIS, the failure to discipline employees in a timely manner presents a serious threat to institutional and public safety. The CDC's inability to fix the ELU indicate that the State of California is unable to solve the serious problems identified by the Federal Court and the Office of the Inspector General.

  Q. The Problems Encountered During the Post Powers Investigations are Representative of a Systemic Failure to Adequately Discipline PBSP Correction Officers by the Highest Level of CDC Officials.

   1. Introduction.

   The Post Powers investigative failures were caused by faulty leadership in the OIS and ELU and the shut-down of three investigations by Alameida. As demonstrated above, this conduct violated the Court's Orders, the Post Powers Plan, and the Departmental Operations Manual. The Post Powers cases, Page 32 however, are far from unique. Indeed, in the course of the Special Master's hearings, the testimony by a number of witnesses brought at least four other cases to light where the highest levels of CDC officials failed to discipline correctional officers because of their fear of a CCPOA reaction. The acquiescence by the CDC to CCPOA demands, no matter how intrusive, an active code of silence, inept CDC officials, and retaliation against whistle blowers and the investigators brave enough to attempt to enforce the law, has rendered the adverse action process in the California Department of Corrections almost entirely ineffective. The Special Master describes below the four PBSP specific examples of the type of interaction that goes on between the CCPOA and the CDC's top officials.

   2. The Director of Correction's Failure to Discipline CCPOA Representatives Alexander and Newton.

   As documented in the Knowles/Palmer internal affairs report, the charges sustained against CCPOA representatives Alexander and Newton were extremely serious. For example, CCPOA representative Newton received information about Correctional Officer Garcia's illegal conduct and failed to report that conduct. During the same time period, Newton represented Garcia at Garcia's State Personnel Board hearing. The evidence also indicates that Newton lied during the IA investigation itself. Likewise, both Alexander and Newton repeatedly engaged in inappropriate business under the guise of CCPOA business. Essentially, both CCPOA representatives attempted to use the excuse of union representation as cover for their concerted program to thwart the PBSP investigation into the criminal activities of Garcia and Powers. Alexander and Newton also filed false SPB complaints with malice, dishonest actions that call into question whether either representative has the ethics required of a California Peace Office. (See Exhibit 26). All in all, the interviews recorded in the Knowles/Palmer report present a frightening portrait of union representatives bent on covering-up the criminal abuse of prisoners.

   Nevertheless, neither CCPOA representative was disciplined in any manner. Director Cal Terhune made the decision not to impose any form of discipline. (Exhibit 57). Newton remains the CCPOA representative at Pelican Bay. Alexander is now a CCPOA Vice President.

   3. The Decision To Pay For the Criminal Defense of Former PBSP Correctional Officer David Lewis.

   a. The Court's Findings Re CDC Shooting Reviews.

   In its Order of January 10, 1995, the Court found as follows concerning lethal force shooting reviews at Pelican Bay State Prison:

   As an initial matter, we note that a significant number of shootings go unreviewed altogether. Department regulations require that all firearm discharges be reviewed to determine whether staff actions comply with policy guidelines governing the use of firearms. When the shooting incident results in serious injury or death, the review must be conducted by a departmental Shooting Review Board ("SRB"). Shootings that do not result in serious injury or death must be reviewed by an institutional Shooting Review Team ("SRT"). DOM § 55050.13. Prison records show, however, that at least 24 rifle shots in 19 separate incidents (between December 1989 and March 31, 1993) were never reviewed at all. Trial Exh. P — 5571. Some of these shots were shots "for effect" (i.e. shots intended to hit a person) or shots resulting in injury. In an additional 17 incidents, involving 30 shots, a shooting review number was assigned to the incident, but there is no evidence that the Page 33 shooting was ever actually reviewed. Trial Exh. P-5571. Given defendants' failure to refute the apparent lack of review in these incidents, we conclude that no such review occurred.

  

Nor have regulations concerning the composition of SRTs been adhered to. Pursuant to the DOM, SRTs must consist of a chairperson plus three officers from different correctional ranks. DOM § 55050.13.1. Yet, until three months before trial, SRTs at Pelican Bay inexplicably consisted of only one administrator. Not only does a one person "team" clearly defeat the very purpose behind the group approach to shooting reviews, but it also signals that such shootings are not considered serious enough to warrant review by more than one person. Of most concern, however, is that the actual review process has been rendered a mockery of its intended purpose. The shooting officer's incident report is typically taken at face value and given little scrutiny, even where it fails to identify any facts that would justify use of lethal force. One administrator candidly expressed the prevailing deferential attitude toward incident reports: "I can't second — guess the officer. . . . The only person who can make the determination on whether to fire or not is the officer at the time of the incident." Lopez Tr. 14-2223. Nor is it a matter of practice to interview persons who either witnessed or were directly involved in the incident. And although reviewers are charged with determining whether a shooting was in complete compliance with relevant policies and procedures, they are not always aware of what those policies are. Consequently, shooting reviews at Pelican Bay are little more than a perfunctory validation of the incident report itself.
   A notable illustration of the lack of meaningful review is provided by the administration's response to officer claims of "stabbing motions" to justify the use of lethal force. As plaintiffs' expert observed, "nobody ever makes a stabbing motion if they don't have a weapon," yet officers at Pelican Bay repeatedly attribute such motions to inmates to explain shooting incidents when after the fact no weapon is found and no one has been cut. Fenton Tr. 5-759. Such a claim suggests that the officer has either made an honest mistake or is engaged in after-the-fact justification. Under either circumstance, some supervisory action is warranted (further training in the former, or training and discipline for lack of candor in the latter). There is no evidence in the record, however, that such action ever took place; on the contrary, a statement that an officer saw "stabbing motions" appears to automatically sanction the shooting. Plaintiffs' expert Nathan joined in Fenton's condemnation of the shooting review process, calling it a "farce." Tr. 13-2038. Defendants' expert also had little positive to say about the shooting review process, and agreed that shootings "could stand more scrutiny" at Pelican Bay. DuBois Tr. 29-4766-4767. The Warden, however, expressed no dissatisfaction with shooting review practices at the prison. Although Warden Marshall receives a copy of all shooting reviews, he could not recall a single review that he had found unsatisfactory. Tr. 22-3815. (Madrid v. Gomez, supra, 889 F. Supp. 1190-1192 Page 34

  (footnotes deleted).

   b. The Lewis Shooting Review Failed To Select An Appropriate Review Board, Failed to Assess Witness Credibility, Failed to Call Inmate Witnesses, Failed to Call the Correctional Officers Who Observed the Shooting, and Failed Entirely to Make an Adequate Assessment of Whether Lewis' Shooting of Inmate Long Complied With CDC Policy.

   The SRB concerning Officer Lewis' shooting of inmate Long is a classic example of the inadequate lethal force reviews found by the Court in its 1995 opinion. For example, the 1994 SRB (attached as Exhibit 55) failed to interview the following inmates who were on the yard at the time of the incident and who later provided information to the FBI that Long and Willis (the two inmates who had been fighting) were standing between eight and fifteen feet apart when Lewis shot Long: Levert Brookshire, Lou Costa, Kenny Green, and Steve Conklin. The following staff members were on duty during the incident, they witnessed the incident, and later told the FBI the altercation appeared to be "a weak, sissy fight" or a "fight between a couple of girls:" Noel Patton, Kip Wentz, Rick Aguirre, and Ronald Parker. These correctional officer, however, were not interviewed by the SRB. The SRB also took no steps to interview either staff or inmates about Lewis' widely know hatred of child molesters, nor did the SRB conduct any form of review of Lewis' extensive post-incident comments such as, "Long had it coming, he should have died." Just as important, the SRB failed to review the PBSP "shoot don't shoot" training video tape. See also, Reynoso Tr. 942-943.

   The Special Master has reviewed numerous shooting reviews. He finds the Lewis/Long SRB review entirely inadequate; indeed, there appears to have been an orchestrated attempt to focus the majority of its evaluation on the testimony of PBSP staff who arrived on the scene after the warning shot. For example, Lt. Larry Scribner testified he responded to the yard only after the first shot, as did Sergeant Madrid, MTA Gordon, Officer Rice, and Officer Gonzales. According to the report, however, the second shot was fired within 10 to 30 seconds. Neither inmate Long, nor inmate Willis, who was fighting with Long, were interviewed. The Lewis SRB functions more as a cover-up than an explanation of what really happened when David Lewis shot Harry Long.

   Dr. Patrick Maher's Memorandum entitled "Lewis SRB Decision Dated July 28, 1994 is attached as Exhibit 59. It points out deficiencies in the Board's composition, the failure to call witnesses, failure to assess credibility and bias, failure to properly evaluate the shooting, and the failure to cite relevant policy when making its determination. The Special Master agrees with these findings, including Dr. Maher's finding that "[n]o competent manager would use the SRB report as a valid basis for finding Lewis acted in conformance with policy in the use of lethal force against inmate Long."

  

c. Director Terhune's Overhaul of the SRB Process and Acting Director Cambra's Decision Not to Pay for Lewis' Criminal Trial.
   After 1995, the CDC determined that its shooting review process was deeply flawed. Under Cal Terhune's direction, an entirely new procedure was implemented which requires the prompt investigation of all deadly use of force by LEIU, and the evaluation of all completed investigation by an independent group of law enforcement experts in the context of a Deadly Force Review Board. Given all of this, and after Page 35 being briefed on the facts surrounding Lewis shooting Harry Long, Acting Director Cambra made the decision, after Lewis was charged with a civil rights violation, not to pay for Long's criminal defense. (See Parry Tr. 458) California Government Code § 995.2 establishes the standard that must be followed by government entities when conducting an evaluation of whether they should or should not pay for defense of a government employee. Certain types of misconduct, including malice, may precludes an entity from paying for the employee's defense.

   d. Alameida's and Jensen's Contacts With the CCPOA and Their Decision to Pay For Lewis' Criminal Defense at the Retrial.

   When Lewis' conviction was overturned by the Ninth Circuit, however, Alameida, Jensen, and YACA Secretary Robert Presley reversed Cambra's decision. At the hearing of January 9, 2004, Jensen, the former Under Secretary of YACA, testified that he made the decision to pay for Lewis' criminal defense at the request of the President of CCPOA, Mike Jiminez (Jensen Tr. 906-908).

   Jensen was apparently not aware that on June 7, 2002 Benjamin C. Sybesma, Chief Counsel for the CCPOA had meanwhile also sent a letter to Alameida requesting the CDC pay for Lewis' representation — using an attorney selected by the CCPOA. (Exhibit 35). The CCPOA letter focused entirely on a recently negotiated provision of the union contract, and ignored the controlling California statute, Government Code § 995.2. Thus, while Jensen was dealing with CCPOA President Jiminez, Alameida was responding to CCPOA Chief Counsel Sybesma. What transpired concerning the CDC's decision to pay for Lewis' retrial was similar to what transpired during the stoppage of the Post Powers interviews at PBSP: Ballard was receiving a series of letters and demands from by CCPOA attorney Albertine (Exhibits 10-15), while Gaultney was being contacted CCPOA Chief Counsel Sybesma (Exhibit 54), and Alameida was talking with CCPOA Vice President Chuck Alexander.

   While Jensen's memory has faded (Jensen Tr. 911) CDC documents indicate at least two meetings between CDC/ YACA officials and the CCPOA, the first on June 25, 2002 (see the Fax face sheet and legal analysis dated June 24, 2002 attached as Exhibit 36) and the second sometime after July 15, 2002 (see the Fax face sheet and legal opinion of Mark A Mustybrook ("Mustybrook"), Senior Staff Counsel, attached as Exhibit 37). Mustybrook prepared a four page written legal opinion on July 12, 2002 for Alameida that considered both the contract provision and the requirements of the Government Code. Mustybrook recommended that "the Department refuse to provide Lewis with a defense in his pending criminal action." (Exhibit 37)

   At first, Jensen did not recall seeing Mustybrook's legal opinion prior to making the decision that the CDC should pay for Lewis' retrial. (Jensen Tr. 909) However, after the Special Master showed Jensen a copy of Mustybrook's opinion appended with Jensen's own handwritten notes, Jensen admitted reviewing the opinion. Jensen testified, however, that he relied upon recent revisions to the CCPOA MOU, his discussions with CCPOA President Mike Jiminez, and the fact that the 1994 SRB found the Lewis/Long shooting within policy when he made the decision to pay for Lewis' criminal defense — notwithstanding the contrary legal opinion. Jensen justified the CDC paying for Lewis' criminal defense because he believed the CCPOA Memorandum of Understanding ("MOU") "compelled us to pay for his defense unless there was some uncontradicted evidence to one of these (statutory) exceptions" (Jensen Tr. 938) To Jensen, the MOU established an "uncontradicted evidence" standard of proof that is absent from California Government Code § 995.2. Thus, despite the findings of this Court discussed in Section IV a above, the dramatic changes in lethal force reviews initiated by Director Cal Terhune, compelling evidence that Lewis intentionally shot Long, and the advice of CDC legal counsel, Alameida, Jensen, and Secretary Presley Page 36 began the process of obtaining a Governor's Action Request ("GAR") to pay for Lewis' defense. The GAR, if approved, will obligate California taxpayers to fund Lewis' defense by an attorney selected by the CCPOA.

   Alameida testified that Jensen, not he, made this decision (Alameida Tr. 738-739). Jensen also claims responsibility for the decision. (Jensen Tr. 907) However, an e-mail dated July 25, 2002 from the CDC's Deputy Director of Legal Affairs, John Sugiyama, casts doubt on both claims. Mr. Sugiyama informs two of his attorneys that: "Ed [Alameida] has decided that we will pay for Officer Lewis's representation. According to Kathy Kinser, Ed apparently has in mind that the start date for our obligation will extend backwards only about a month and go forward from that date. Does that time frame correspond to a discrete identifiable event that makes sense? In any event, please prepare the GAR, and alert Bruce that he will need to explain that this is a Unit 6 bargaining matter to the Governor's Office." See the July 25, 2002 e-mail from John Sugiyama to Catherine Bernstein and Mark Mustybrook attached as Exhibit 38)

   e. Summary.

   The Special Master finds that the decision to reverse course and pay for Lewis' second defense was based entirely on concerns about the CCPOA. The facts, as well as the legal opinion by the Department's own attorney, mandate the opposite decision. The Special Master notes, however, that neither Jensen nor Alameida followed-up on their decision and no GAR was sent to Governor Davis. (Keeshan Tr. 957) Hopefully, the new administration in the CDC, YACA, and the Governor's Office will revisit the recommendation set forth in Mr. Mustybrook's opinion of July 12, 2002.

   4. Lance Corcoran's Objections to Joe Reynoso Sitting At Counsel's Table During the Lewis Re-Trial.

   The long arm of the CCPOA's influence over the highest level of CDC officials is also reflected in John Sugiyama's July 25, 2002 e-mail (Exhibit 38). As the Special explained above, in the Fall of 2002 the U.S. Attorney and Joe Reynoso had been informed by CDC officials that Reynoso would not be allowed to sit at counsel's table during the re-trial of David Lewis. Alameida told the Special Master he believed this to be important to impart an aura of "neutrality" to the jury. It appears, however, that the Director's decision was in fact made because of objections by CCPOA Vice President Lance Corcoran. As stated by Mr. Sugiyama, "Lance apparently objected to the fact that CDC personnel in the earlier trial sat at the prosecutor's table. Ed was unclear about the reference — I think Lance was probably referring to CDC investigators who for several years now have been working exclusively for the U.S. Attorney."

   That the Director of Corrections would entertain and act upon such an objection from the CCPOA, given the history of the union's interference with the Powers/Garcia/Lewis cases, is nothing less than shocking. Mr. Sugiyama continues his e-mail with a practical and valid argument: "If in fact these are the `CDC' people whom Lance finds objectionable, we (CDC) can do nothing about where the U.S. Attorney may want them to sit." However, similar to YACA ignoring Mr. Mustybrook's legal opinion, CDC officials ignored Mr. Sugiyama. Joe Reynoso, assigned after several months of delay to assist the U.S. Attorney with the Lewis re-trial, testified as follows: "I had a conversation with the then assistant director of internal affairs, Thomas Moore, that one of the conditions, one of the conditions being placed upon my assisting the United States Attorney in the prosecution of David Lewis was that I was not to sit at the Government's table; that I was to stand outside the courtroom. And if the Government lawyer had a question, they can somehow get word to me that they had a question and I was supposed to come back into the courtroom see what the question was and then go try and deal with it somehow." (Reynoso Tr. Page 37 944-945)

   5. Sergeant George Arquilla's Incompatible Practice of Testifying as a CCPOA Expert and the CDC's Failure To Investigate Possible Violations of California Code of Regulations, Title 15, Section 3413.

   Counsel for the CDC have argued, throughout the hearings, that any recommendations issued by the Special Master should be limited given that violations of the use of force policy at PBSP are rare, as are adverse action discipline cases at the prison. Over the course of several years, through the effective use of the ERC and corrective actions, PBSP has, to its credit, significantly reduced the amount of force used to control inmates. The prison is far safer today for both inmates and staff than it was at any time between 1990 and 1995. However, the shortfall with defendants' argument is that even today the Central Office ELU unit loses almost every case it takes to the State Personnel Board ("SPB"). Furthermore, in almost every case, the loss is caused by something that could and should have been prevented. The June 30, 2003 SPB decision in the case of PBSP Correctional Officer Jerry Reynoso, Case number 03-0405, is a typical example of the ELU's inability to counter the tactics used by the CCPOA during SPB hearings.

   Jerry Reynoso was appointed at PBSP on October 31, 1998. On February 6, 2002 he was found to have used unreasonable force when striking an inmate in the face while the prisoner was restrained and wearing a spit hood. Reynoso was disciplined by Warden McGrath (five percent salary reduction for six months) and he appealed his decision to the SPB.

   At the SPB hearing of April 16, 2003, George Arquilla, Senior Training Sergeant at the Richard A. McGee Correctional Training Center testified as an expert witness for the CCPOA. (Exhibit 61) Diane Robbins, the ELU Staff Counsel representing Warden McGrath, told the Special Master she received no notice from the CCPOA of Sergeant Arquilla's appearance. Ms. Robbins did not, however, object to Sergeant Arquilla's testimony. (See Exhibit 61 at pages 29-30).

   The Special Master reviewed other SPB records concerning PBSP cases and discovered that Arquilla testified as a CCPOA expert in at least one prior PBSP SPB matter involving Correctional Officer Bridges. Records have not been reviewed to determine the number times Arquilla testified as a CCPOA expert in cases at other prisons. The Special Master met with Alameida, counsel for the parties, and two attorneys from the Legal Affairs Division to discuss, among other things, Arquilla's appearance as a CCPOA expert. Alameida and his attorneys informed the Special Master that they were powerless to stop an employee from working as an expert for the CCPOA.California Code of Regulations, Title 15 § 3413, however, defines "Incompatible Activity" for the Department of Corrections. Provisions exist for obtaining prior approval before engaging in any outside activity, and other limitations are imposed on working as an expert. Accordingly, the CDC is not, in fact, powerless to prevent a CDC employee from working as a CCPOA expert. Apparently, neither the Director nor his lawyers were aware of Title 15 requirements. Nor are there policies or procedures to provide guidance for the wardens and other administrators. The negative outcome of the Reynoso case raises numerous question relevant to the use of force discipline plan. Did Sergeant Arquilla obtain the appropriate approval prior to working for the CCPOA as an expert against the CDC? Is so, why didn't the approving administrator inform the ELU? If not, why hasn't the Sergeant been disciplined? Did Sergeant Arquilla receive compensation from the CCPOA? Did he take time off work for each of his appearances?

   Title 15 § 3410 provides for disciplinary action up to and including termination. The Special Master will meet with the parties to determine whether this matter is best pursued by an internal affairs investigation Page 38 or additional hearings by the Special Master.

   6. Summary

   The Special Master find that the above cases are indicative of a pattern of interaction between the CCPOA and the highest levels of corrections officials that have adversely affected the implementation of the Use of Force Remedial Plans.

  R. The Directorate of the Department of Corrections Sanctioned the Code of Silence By Their Decision to Shut-Down the Post Powers/Garcia Administrative Investigations.

   1. The CCPOA and the Code of Silence at Pelican Bay

   LEIU Agent Joe Reynoso encountered a code of silence on numerous occasions during the course of his investigations at PBSP. Reynoso defined the code of silence as follows:. "when a staff member is aware of misconduct, observed misconduct and fails to come forward or is aware of it and when asked about it refuses to tell the truth." (Reynoso Tr. 494) As Reynoso testified at the Special Master's hearing of September 25, 2003:

Steven Fama: Why wouldn't an officer want to provide information that was critical of another officer in your opinion.?
Joe Reynoso: That's part of working in a job where you have code of silence issues; you don't talk about an officer because it could come back to put you in a situation where those officers who you count on may see you as a rat or an informant and they might not come to your assistance. (Reynoso Tr. 527-528)
   During the Powers/Garcia/Lewis criminal interviews at PBSP, the CCPOA put out a memo notifying staff that IA was going to be at PBSP and that staff did not have to talk to them if they did not want to. Thus, the union sent a message to correctional officers not to cooperate with IA no matter what position they were in (in other words, even if a correctional officer was a witness to an abuse of force). Because the CCPOA's intervention resulted in officers refusing to be interviewed by the FBI, the FBI was required to issue subpoenas to force officers to testify before the grand jury. (Reynoso Tr. 496) Reynoso also described the adverse impact of the code of silence on potential witnesses. For example, because of the code of silence one officer did not come forward with any information until he left the CDC's employment for fear of his safety. (Reynoso Tr. 497)

   Likewise, Assistant United States Attorney Melinda Haag found a code of silence among PBSP correctional officers that adversely affected the United State's attempt to prosecute Powers and Garcia. During the June 2002 meeting with the CDC officials, Ms. Haag discussed the code of silence as it related to Officer Schembri and why he did not come forward initially. The code of silence was also discussed with respect to Correctional Officer Mather, because Mather testified he was no longer employed by the Department when he came forward and told the truth. Mather had been previously untruthful about the incident when he was required to provide a declaration in connection with a civil lawsuit that had been filed by Perez. Mather testified he was untruthful in that case because of the code of silence, and since he was still employed by the Department he did not feel like he could tell the truth. (Haag Tr. 794-795)

   Correctional Officer Matlock, one of the three subjects in the Post Powers internal affairs investigations, testified under oath about the process established by the CCPOA for PBSP correctional officers to respond to FBI requests for interviews. Matlock was originally contacted by the FBI in the Fall of 1999. The FBI asked him if they could talk about allegations of staff misconduct. Matlock called the FBI back and told the FBI that after talking to the union, he did not want to talk with them. Matlock told the FBI he would prefer to talk in front of the grand jury, based on the advice from an attorney from Page 39 CCPOA headquarters. Pursuant to a subpoena, Matlock came to the U.S. Courthouse in San Francisco. He was represented by an attorney hired by the CCPOA for his grand jury appearance. Matlock came to the courthouse in response to the grand jury subpoena involuntarily. He stated on the record that he did not want to be there. [Criminal Trial Transcript, Volume 15 at 2963:1-2966:2].

   2. Alameida, Tristan, and Kinser Sanctioned the Code of Silence When They Shut Down the Post Powers Investigations on March 27, 2003.

   The code of silence, while pervasive, is not a reflection of the ethics and sense of duty of the majority of Pelican Bay correctional officers. A minority of rogue officers can establish a code of silence, threaten the majority, damage cars, isolate uncooperative co-workers, and create an overall atmosphere of deceit and corruption. And if the minority are supported by a powerful labor organization, and the union as well as management condones the code of silence, the consequences are severe. For this reason, the highest level of CDC officials must take decisive steps to control the code. Concerning the Post Powers investigations, the Directorate did the very opposite.

   In many respects, what took place the during the Post Powers internal affairs investigation is identical to the cover-up of the abuse of force detailed at trial. As noted by the Court nine years ago:

[W]hen (prison administrators) let highly suspicious incidents and investigative reports go unchallenged, and when they promote the code of silence by failing to support those who come forward, they lead us to conclude that they have implicitly sanctioned the misuse of force and acted with a knowing willingness that harm occur. Madrid v. Gomez, supra, 889 F. Supp. 1200.
   The only significant difference between the post-Powers cases and the testimony at trial is that the Post Powers investigations were shut-down not by prison personnel, but by the highest ranking leaders of the California Department of Corrections, working closely with the Deputy Director of the Office of Investigative Services.

   Dr. Maher's Report entitled "Analysis of Organization Culture and Structural Influences on Reporting and Decision Making" is attached as Exhibit 50. As Dr. Maher points out, the code of silence is encouraged by inaction on the part of a correctional leader. Investigating those who are willing to come forward, despite the code of silence, for minor infractions that they readily admit to is one way that staff are discouraged from resisting the code of silence. Likewise, ignoring or not pro-actively obtaining the evidence of misconduct, especially if that misconduct involves the covering-up of serious misconduct, sends a clear message that the administration is indifferent to such actions. If correctional officers are not supported for honesty, and if they observe cover-ups being tolerated by CDC leadership, they will conform to pressure from their peers to conform to the code of silence.

   For example, while the CDC failed to properly investigate Officers Jones, Matlock, and Tuttle for perjury in Federal Court, the CDC completed a timely investigation of Sergeant Schembri for having minimal contact with his lieutenant when he was first served notice of the interview. The charges against Schembri were sustained; indeed, Schembri never denied them. However, once the investigation was complete, the CDC did nothing. In fact, the CDC is unable to provide documents showing the resolution of the Schembri investigation. See Exhibit 56: Letter from Reynando J. Accooe stating that the CDC is unable to provide any documents that summarize the disposition of IA Report No. 40-002-96 — subject William Schembri. See also Exhibit 50. As Dr. Maher points out, investigating a whistle-blower for an act he readily admits to, finding misconduct, then ignoring the alleged misconduct is an all too typical method used Page 40 foster the code of silence.

   As Dr. Maher explains, the March 27, 2003 meeting in the Director's Office was designed to shut down the investigations. Neither the investigator nor the attorney assigned to the cases were provided an opportunity to prepare for the meeting, the concerns they expressed at the meeting were essentially ignored, and they were excluded from the decision making process.

   3. Summary

   Based on all the evidence, the Special Master finds that the CDC's Directorate sanctioned the code of silence in the following manner with respect to the Post Powers investigations.

   1. Failing to properly investigate potentially egregious examples of the code of silence: perjury in Federal Court to cover-up misconduct of a fellow officer.

   2. Shutting down internal affairs investigations without consulting the prison hiring authority and in violation of the DOM and the Court ordered Use of Force Remedial Plan.

   3. Punishing the Post Powers whistle-blower, Sergeant Schembri.

   4. Attempting to hide the facts supporting misconduct by Correctional Officers Jones, Matlock, and Tuttle by submitting a false and misleading document to the Special Master.

   The Special Master also finds there is a code of silence about the code of silence in the CDC's Central Office, an attitude of benign neglect concerning the history of CCPOA's interference with criminal investigations, which in turn allows continued interference by the union that causes many investigations and adverse action cases to end without success.

   V.

   CONCLUSION.

   As detailed above, the Post Powers investigation was riddled with failures. Indeed, the evidence demonstrates that the Post Powers Investigation Plan, submitted by the Department of Corrections to the Court through the Special Master, was a sham which high-ranking CDC officials never intended to follow. The investigations started four months late, they were grossly understaffed, and the Office of Investigative Services agent and the Employment Law Unit attorney assigned to investigate Officer Jones, Tuttle, and Matlock were never even informed by their superiors of the CDC's Post Power's Investigation Plan. The three investigations were shut down by Edward Alameida, the Director of Corrections, well before their completion and days after the investigator informed the CCPOA that one of the cases was being referred to the San Francisco District Attorney. The Plan's mandate to focus on administrative, rather than criminal, discipline was also ignored. Thereafter, Alameida and the Deputy Director of the Office of Investigative Services, Thomas Moore, conspired to submit a misleading and false letter to the Court.

   The failures of the Post Powers investigation are also illustrative of a pattern of conduct in which CDC officials at the highest level demonstrate an unwillingness and inability to investigate and discipline serious abuses of force by correctional officers. This became apparent during the course of the hearings in this matter which brought to light numerous examples of a failure of leadership in this crucial area including: (1) The failure to discipline Chuck Alexander and Richard Newton although the Knowles/Palmer internal affairs investigation sustained serious charges against them regarding Union interference with investigations into staff misconduct; (2) the decision to reverse course and pay for the criminal defense of Officer Lewis despite evidence that Lewis intentionally shot an inmate because he thought the inmate was a convicted child molester, and despite a contrary legal opinion from the CDC's own attorney; (3) acquiescence to CCPOA demands that a CDC investigator assisting the Assistant United States Attorney in the Lewis retrial be precluded from the courtroom during the retrial, and (4) failure to stop a CDC Training Sergeant from Page 41 testifying as an expert witness for the CCPOA and against the CDC, in violation of California Code of Regulations Title 15. This evidence, combined with the failures in the Post Powers investigation, and the comprehensive reports from the Office of Inspector General finding serious systemic failings in both the Office of Investigative Services and the Employment Law Unit, demonstrates that the California Department of Corrections has lost control of its investigative and discipline processes.

   Indeed, grave systemic shortfalls continue to plague the operations of the Office of Investigative Services and the Employment Law Unit, despite the fact that more than two years have now passed since the Inspector General issued his critical reports.

   Perhaps most telling about the scope of this problem is the fact that without a series of hearings by the Special Master, the Pelican Bay investigation and discipline problems discussed in this report would never have come to light. This point simply serves to underscore the fact that, in addition to the problems documented in this report, the State of California also has no current effective mechanism for monitoring and correcting abuses when they occur within the Department of Corrections' investigation and discipline system.

   VI.

   RECOMMENDATIONS

  A. Introduction.

   The formulation of adequate remedies to address the pervasive systemic problems concerning OIS investigations and adverse action discipline cases presents serious challenges. On the one hand, the imposition of correctional officer discipline is governed by California statutes and the Department of Corrections MOU with the California Correctional Peace Officer Association. To a significant degree, employee discipline is peculiarly a matter of State law. On the other hand, the CDC's failure to properly investigate Correctional Officers Jones, Matlock, and Tuttle represents a serious and blatant violation of the remedial plan. The shut-down of these investigations also violated the CDC's Department Operation Manual and the CDC's Post Powers investigation plan. The failure was instituted and condoned by the highest levels of CDC management. It was followed by an attempt to deceive the Special Master and Federal Court. Furthermore, the Post Powers cases are not isolated examples, they are indicative of a pattern of inadequate investigations and the failure to discipline correctional officers for serious abuses of force, as reflected in the OIG audit reports.

   In addition, the CDC's initial response to the Court's scrutiny of the Post Powers investigation shut-down was poor. CDC officials focused their attention downward, suggesting the OIS agent was responsible instead of a lack of leadership within the Central Office. Promises were made of a review of OIS by a retired annuitant, while Moore and Alameida put great stock in ordering the three administrative investigation to be re-opened as criminal investigations. Today, months after the promised completion of those re-investigations, nothing has been submitted to the Special Master.

   The Special Master must also take into account that while the Office of the Inspector General has done a diligent and professional job auditing and analyzing the serious systemic shortfalls of both OIS and ELU, without enforcement power, the OIG has been forced to stand by for years while the CDC has essentially done nothing of substance to correct the serious problems reported in those audits. Now, the OIG has essentially been eliminated due to budget cuts. The vast weight of the evidence indicates the problems set forth above cannot, and will not, be corrected without firm and detailed orders from the Page 42 Federal Court. Lesser methods have been tried. They have not proven effective.

   Finally, the Special Master must also carefully evaluate the impact of his recommendations on CDC operations. The failure to investigate and discipline staff who abuse prisoners jeopardizes institutional security. Likewise, an active code of silence threatens inmates, honest officers, security, and public safety. The Special Master has, over the course of seven years, talked with numerous PBSP employees, including recently hired correctional officers, nurses, and MTAs. The correctional officer recruits who seek employment within the CDC do so with high expectations and positive motives, consistent with other applicants who seek a career in law enforcement. The young men and women who seek CDC employment are not taking peace officer jobs to commit crimes or lie or cover-up the abuses of their co-workers. Somehow, however, the rookie correctional officers who go to work for the CDC are forced to adopt the code of silence. Rather than CDC staff correcting the prisoners, some correctional officers acquire a prisoner's mentality: they form gangs, align with gangs, and spread the code of silence. The code of silence is taught to new recruits because of a longstanding CDC culture; thereafter, good officers turn bad. The Department has failed to address the situation in any effective manner; indeed, the evidence demonstrates that the Directorate turned it head when confronted with the code of silence, especially if the CCPOA is involved. It cannot be emphasized too strongly that the code of silence is always accompanied by corruption. It serves no legitimate penological purpose.

   The Special Master is cognizant, however, that as the hearings progressed the State of California's recognition of the seriousness of this problem slowly began to increase. Over time, Thomas Moore, Robert Gaultney, and Edward Alameida either transferred to new positions or resigned. A new Governor has been elected, and Rod Hickman has replaced Robert Presley as the Secretary of YACA. The Special Master has had three positive meetings with Mr. Hickman. A comprehensive evaluation of OIS has begun, steps that include the transfer of experienced OIG personnel into YACA. Corrective action has also started in the ELU. It must emphasized however, that these changes came about because of the Special Master's hearings and because of hearing conducted by two California State Senators who are investigating OIS failures and the punishment of whistle-blowers at prisons other than Pelican Bay.

   Despite the CDC's miserable compliance record, as described in this report, the Special Master believes that before he submits his final set of systemic recommendations to the Court, the State of California should be provided with a final opportunity to develop an adequate and comprehensive program to address the CDC failure to adequately investigate force, implement adverse action discipline, and conduct its affairs free of inappropriate outside influence. To work toward this objective, the Special Master will file and make public his draft report and exhibits, he will attend the Senate Hearings on January 20 — 21, 2003, and continue for a period of four weeks to meet and confer with Mr. Hickman and other officials to discuss the systemic recommendations set forth below. Thereafter, formal hearings will be held and final recommendations will issue.

   Considering all of the evidence and the findings set forth above, the Special Master recommends as follows:

   1. The Court should issue an Order to Show Cause re Criminal Contempt for Edward Alameida and Thomas Moore because of their willful violations of the Court approved Use of Force Discipline Remedial Policy, Use of Force Disciplinary Procedure, and the Use of Force Investigation Policy and Procedure, specifically:

   A. Failing to adequately investigate the perjury allegations against Correctional Officers Jones, Matlock, and Tuttle in violation of PBSP Use of Force Disciplinary Policy Section II.D, adopted by Page 43 the Court in its Order of December 2, 2002.

  

B. Failing to prepare a report of the Post Powers investigations on the CDC Forms 989 A and B in violation of Use of Force Investigation Policy and Procedure Section VIII.B.3, adopted by the Court in its Order of June 21, 2000 and approved by the Special Master in his "Report Concerning Defendants' Compliance With the Court's Orders re Use of Force Investigations and Discipline filed June 21 2000," filed October 17, 2000 (Exhibit 1).
C. Failing to set forth findings concerning each of the allegations against Officers Jones, Tuttle, and Matlock in a manner where it was noted whether the inquiry supports or refutes the allegations, and failing to arrive at one of the findings identified in Section VII, Subsection B, (5), (b), of the Use of Force Investigation policy and procedure, violations of Use of Force Investigation Policy and Procedure Section VIII.B.4, adopted by the Court in its Order of June 21, 2000 and approved by the Special Master in his "Report Concerning Defendants' Compliance With the Court's Orders re Use of Force Investigations and Discipline filed June 21 2000," filed October 17, 2000 (Exhibit 1).
D. Organizing and condoning a cover-up concerning Director Alameida's decision to shut-down the Post Powers investigations on March 27, 2003 through the submission of a false and misleading letter to the Special Master, and thereby to the Court, in violation of Use of Force Disciplinary Procedure Section V.C. 2-3, adopted by the Court in its Order of December 2, 2002.
   2. The Court should refer this report and the Transcript of the July 30, 2003 hearing to the United States Attorney of the Northern District of California for the filing of perjury charges against Thomas Moore because of the following false testimony:

  

A. Moore testified: "Agent Ballard was not assigned any other cases and I was transitioning his existing cases off of him." (Moore Tr. 140: 2-3)
B. Moore testified: "And Mr. Ballard was tasked with reviewing the transcripts, doing as much legwork as possible, and giving a report as to whether there would be sufficient cause to go forward in the investigative process." (Moore Tr. 143: 22-25)
C. Moore testified: "But I must qualify that statement by saying that Ballard had taken time in month of July and August, I believe, he was down there reviewing the files and me giving periodic feedback." (Moore Tr. 145: 6-9)
D. Moore testified: "I told him I wanted a status report on the investigation. I believe staff counsel, Dennis Beaty, had contacted me and wanted to know the status of the case." (Moore Tr. 154: 20-22
E. Moore testified: "He gave myself a briefing as to, meaning Ballard and Barbara gave myself and Brian Parry, Parry was privy to the briefing. And it was then that we realized we had to brief Mr. Alameida now. I believe the day before I contacted Mr. Alameida to make sure his calendar would be available because I knew this case had to be reviewed." (Moore Tr. 159: 19-25).
   3. The Court should issue an Order to Show Cause re Civil Contempt for defendant Director of the Department of Corrections for violations of the Court approved Use of Force Discipline Remedial Policy, Use of Force Disciplinary Procedure, and the Use of Force Investigation Policy and Procedure. To purge this contempt, defendants should be ordered to develop and implement in a timely manner a comprehensive remedial plan that adequately addresses the following: Page 44

  

A. Defendants must acknowledge the scope and severity of the overall problem, including the code of silence. For example, the remedial plan should address the severe operational problems with the OIS and the ELU.
B. Defendants should clarify the mission for these critical CDC agencies.
C. Defendants should implement overall operational reviews of OIS and the ELU. Independent and expert assessments of each unit should be accomplished in a timely manner.
D. Defendants should develop a master plan for addressing the problems with each entity, and consider: (1) combining, (2) eliminating, and (3) contracting out certain functions. A time line should be established for each step of the remedial process.
   The master plan should require a formal State of California structure to provide enhanced (1) credibility in terms of outside evaluation of the employee investigation/discipline process and (2) transparency in terms of outside review (for example, a combination of OIG type assessment plus Deadly Force Review Board type of public assessment of critical cases). Defendants should develop a system of monitoring investigation and discipline so the Special Master can review the monitoring — not the individual cases. In essence, public confidence must be restored that the State of California, and not special interests, are in clear control of CDC investigations and employee discipline.

   E. Defendants should develop a timely and phased corrective action plan for OIS and the ELU. These action plans should include training for staff, entity specific policies and procedures, the removal of ineffective personnel.

   F. Defendants should take immediate action to establish and implement CDC policies to establish a specific and rigorous firewall between the CCPOA and the CDC's investigation and discipline process at both the institution and Central Office level. The policy should clearly set out sanctions for those employees who violate this policy, including violations by CCPOA representatives.

   G. Defendants should institute a mandatory training program concerning the code of silence, with either personal or video involvement by the highest levels of YACA and the CDC. The training should be provided to all CDC staff, institution and Central Office.

   4. The Court should order the Special Master to prepare a report and issue recommendation concerning CCPOA/CDC MOU provisions that violate, by their terms or in practice, the use of force remedial plans.

   This draft report has been filed because of the extraordinary public concern expressed about this issue. The draft report will not be considered by the Court. Both parties will be provided opportunity to offer objections and/or comments in a formal and informal manner. Pursuant to the Order of Reference filed January 23, 1995, there will be a hearing on the record concerning the parties' objections to the Special Master's findings of fact and his first, second, and fourth recommendations at 9:00 a.m. Friday, Page 45 February 13, 2004 in Courtroom 12, located on the 19th Floor of the United States District Court for the Northern District of California.

   A second hearing on the record will be conducted to discuss the parties objections to the Special Master's third recommendation beginning at 1:00 p.m. that same day. The parties written objections concerning both hearings should be served on the Special Master and opposing counsel no later than Friday, February 6, 2004. The parties are reminded of their responsibilities under paragraph C, page 6 of the Order of Reference.

   A status conference to address defendants' compliance progress concerning the Special Master's third draft recommendation will be held before the Honorable Thelton E. Henderson at 1:00 p.m. on Tuesday, March 9, 2004 in Courtroom 12. Thereafter, the Special Master will confer with the parties to determine if additional meetings or hearings are necessary before he submits a final report for the Court's consideration.

20040115

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