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 ...