United States District Court, N.D. California
January 15, 2004.
ALEJANDRO MADRID, et al., Plaintiffs
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
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
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
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.
THE PELICAN BAY STATE PRISON USE OF FORCE
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
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
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
See, Use of Force Investigation
Policy and Procedure Section VIII.B.3
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
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.
THE SPECIAL MASTER'S HEARINGS AND DOCUMENT
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
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
The findings below are based on all of this evidence.
During the course of the Special Master's hearings evidence came to
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
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
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
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
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.
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
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
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 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
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.
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:
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
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)
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
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)
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
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
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
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
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.
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
to the conclusion that he could prosecute Officer Jones (Barbara
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
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
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
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.
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
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.
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
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
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.
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.
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.
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)
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
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
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
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
"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
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
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.
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
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
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
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
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
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
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.
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
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.
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
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
N. The Department of Corrections' Failure to Comply With the
Court Ordered PBSP Use of Force Remedial Plan.
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
manage the investigations, and the Director of Corrections
shut-down the investigations prior to their completion. As Brian Parry
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
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.
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.
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
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
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
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
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.
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
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
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
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.
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
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
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
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
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
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
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'
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
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
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
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
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
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,
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.
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
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
or additional hearings by the Special Master.
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
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,
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
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.
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
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,
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
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.
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
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
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
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
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.
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
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
Federal Court. Lesser methods have been tried. They have not proven
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
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:
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.
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:
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:
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
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
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,
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
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
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