The Public Eye: Due process for prisoner proceedings allegedly violated
08/01/2010 12:00 AM
05/26/2011 7:32 PM
The prison official assured his warden in an e-mail that everything was set: A group of 77 inmates accused of interfering with officers would be found guilty, no matter what.
Disciplinary hearings – required proceedings where inmates can defend themselves with witnesses and evidence – had not yet taken place at North Kern State Prison.
Yet, in the April e-mail obtained by The Bee, acting Associate Warden Steven Ojeda promised to provide the hearing officers – lieutenants he supervised – "with direction prior to the hearings and ensure they understand to hold all of these inmates accountable."
Leaving nothing to chance, Ojeda prescribed punishments, too: loss of good-behavior credit and visiting privileges, threat of a term in one of the prison system's security housing units – called "the hole" by prisoners – and other serious penalties.
By acting as judge and jury, Ojeda fit a pattern, a Bee investigation has found, that suggests widespread suppression of inmates' rights to contest allegations by guards or pursue claims of mistreatment.
Current and retired officers, prisoners and parolees allege that correctional officers and their superiors routinely file bogus or misleading reports, destroy or falsify documentation of abuses, and intimidate colleagues or inmates who push back.
Sources with firsthand knowledge called the problem pervasive, offering dozens of examples. Even if the allegations are valid for a fraction of cases, thousands of prison terms could have been extended improperly at vast cost to taxpayers.
One North Kern employee familiar with the Ojeda situation spoke to The Bee anonymously for fear of retaliation. He said officers given the orders were "shocked" that Ojeda would formalize an abrogation of due process.
Neither acting Warden Maurice Junious nor Ojeda returned calls or e-mails seeking comment.
A corrections spokesman said that 33 North Kern inmates did not have good-behavior credits removed, and four of the 77 prisoners received penalties less severe than 90 days forfeiture of good-behavior credits, proving that inmates were not prejudged.
But in the 33 cases noted, all inmates were found guilty and were spared a loss of good-behavior credits only because their paperwork was filed late. The North Kern source said internal records confirmed the remaining cases as pending.
Scott Kernan, corrections undersecretary for operations, last week called Ojeda's e-mail "inappropriate" and "improper," and said it might signal a need for training. But he said it could have been intended to ensure an even-handed approach.
Kernan said he would look into the incident but defended prison due process as having "served the state well (as) a fair and appropriate system, and time-tested."
Told of Ojeda's e-mail, Michael Gennaco, who monitors the Los Angeles County Sheriff's Department for officer misconduct and helped design a similar system for California prisons, said it seemed to violate inmate rights.
Basic fairness depends on "providing inmates with a level of due process," he said, "which isn't much."
Daniel Johnson, a recently retired state prison research analyst, was assigned in 2008 and 2009 to record information into a database from about 10,000 employee-misconduct appeals filed by prisoners over more than five years. He told The Bee that virtually every complaint filed against a correctional officer was rejected by officials, including hundreds of appeals alleging physical abuse "even when medical records supported the complaint."
Of course, prisoners lie about mistreatment; Johnson said many complaints he reviewed appeared unwarranted. But there were many "clear instances," he said, of manipulation by officials "in what I would say is a criminal manner."
Kernan, however, said that "typically, research analysts would not have enough information while inputting data to make such a conclusion." He called corrections "the most investigative law enforcement organization in the state" and one that is continually "rooting out misconduct as diligently as we possibly can."
Blood pooled near his head
Kenneth Hernandez's fate was sealed by a guard's grunt.
That small utterance took on larger significance at High Desert State Prison in Susanville, 200 miles northeast of Sacramento, where Hernandez was imprisoned on drug and weapons charges. He was housed in a gym filled with bunk beds and lockers – typical in the state's crowded prisons.
On May 26, 2004, Hernandez, then 21, had the misfortune of crossing paths with Officer David Sharpe between rows of beds. Sharpe said Hernandez struck the guard's chest with his elbow. Another guard said he heard Sharpe grunt. Hernandez denies any such attack.
In sworn statements, witnesses said that Sharpe, who stands 6 feet tall and weighed about 300 pounds, bear-hugged Hernandez – 5 feet 9 and 140 pounds – from behind. He threw Hernandez head-first into a metal locker. Hernandez fell to the floor, with Sharpe on top of him, then twitched and jerked violently. Blood pooled near his head.
In a subsequent court proceeding, Sharpe confirmed those events but faulted the confined area and said he did not intentionally injure Hernandez.
"He's having a seizure!" some of the prisoners said they shouted in alarm. Sharpe kneeled on the back of the convulsing prisoner.
"Shut the f--- up!" Sharpe yelled, pressing his forearm against the nape of Hernandez's neck, according to inmate witness statements in the prison investigation report.
Hernandez was airlifted to Reno for emergency surgery, his skull fractured.
Back in his cell weeks later, Hernandez suffered from facial paralysis, seizures and vomiting, according to medical records. He also had to defend himself against the serious charge of assaulting an officer.
Hernandez told The Bee he didn't get a fair hearing because key evidence was barred. The prison investigator disallowed photographs of the scene, a complaint by other inmates alleging criminal misconduct by Sharpe, and statements from FBI examiners, according to his report.
Also rejected by the investigator was Hernandez's "stress voice analysis" – a lie-detection method – conducted by High Desert internal affairs, which the inmate claimed proved his innocence.
The investigator did include in his report accounts of inmates, who said they saw Sharpe attack Hernandez without provocation. None said Hernandez attacked the officer and no guards witnessed the event.
But the hearing officer, Lt. J.L. Bishop, said the inmates' testimony "lacks credibility," because they fear revenge from other prisoners for supporting a guard.
Guards said that inmates moved to the floor reluctantly when ordered to during the altercation, Bishop wrote. That reticence, he said, "strongly colors this incident in staff-assaultive tones."
The linchpin was the officer's recollection of the grunt.
Sharpe's grunt, "prior to commanding the inmates to 'get down' strongly indicates that he was struck with force," Bishop wrote, "and without warning."
Bishop found Hernandez guilty and sentenced him to five months' loss of good-behavior credit, a year without family visits and a possible term in the hole.
Six years later, Hernandez is out on parole. He still has trouble with balance, and said in cold weather the clip that secures his skull makes his head ache. As of 2009, Sharpe still worked at High Desert.
'I'll answer to God'
Hernandez's injuries were severe, but his due-process experience was typical of accounts from dozens of inmates in state lockups.
Current and former correctional officers said guilty findings often were preordained informally and hearing officers knew they would be in trouble with higher-ups if they didn't consistently find inmates guilty.
Gerald Edwards, a former lieutenant at Calipatria State Prison east of San Diego, said he conducted about 100 rule-violation hearings in the last few years of his 24-year prison career. In 2009, Edwards alleges he was harassed by superiors after ruling in favor of inmates four or five times.
In one case, a prisoner was charged with intoxication for "walking erratically," Edwards said. The prisoner didn't supply enough urine for a drug test, tantamount to admitting guilt. Yet grounds for a test seemed lacking to Edwards – no staggering gait, dilated eyes, alcohol on the breath or slurred speech, according to inmates and officers who were present.
Edwards' own investigation showed that the prisoner was dehydrated, and could not provide a proper sample.
A guilty finding would have been like a new prison sentence, due to the loss of good-behavior credit, he said.
" 'I'm not going to do that,' I told the warden," Edwards told The Bee. " 'I'll answer to the higher authority on this.' I meant I'll answer to God."
Kernan, the prison undersecretary, called Edwards' claims that he got in trouble for judging inmates honestly "patently false," and "very bad information from a disgruntled employee."
Gene Cervantes, who left corrections in 2007, worked for years evaluating due process at Sierra Conservation Center east of Stockton.
Cervantes said officers often charged inmates with violations they couldn't have witnessed, and at least 80 percent of inmates in the vicinity of major disturbances were found guilty of something.
"(Officials) said, 'He's probably not guilty, but let's call him guilty,' " Cervantes alleged, "because if not this, he's guilty of other things."
Kernan acknowledged that in a chaotic situation, determining who is at fault can be difficult. When occasional mistakes occur, he said, they can be rectified later by prison authorities or appealed in court.
Guards often fabricated rule violations against prisoners they didn't like, said Deb Paul, an officer for nearly 19 years, most recently at California State Prison, Sacramento. Paul said she retired in 2005.
Several officers told The Bee that at least 10 percent of violations improperly lengthened prison terms. If that estimate is accurate, thousands of inmates would have been affected last year.
Inmates can lose time off for good behavior for repeatedly flouting minor rules, such as muttering profanities or stepping across a line on the yard. Others collect the wages of despair: longer time behind bars for attempting suicide. Rule violators serving "life" terms are often kept in prison by the parole board, sometimes adding years to their imprisonment.
Guards often viewed extended sentences as small victories for job security, Paul said. But incarceration costs more than $47,000 per adult inmate per year, so these practices cost state taxpayers at least tens of millions of dollars annually.
'Worst examples imaginable'
Some inmates make a practice of trying to bury officials in appeals – in prison lingo, "602s" – about trivialities such as cold coffee or rudeness.
"In all fairness, most officers are decent folks, and many inmates do abuse the 602 process," Eugene Dey, incarcerated for weapons and drug offenses at the Correctional Training Facility in Soledad, wrote to The Bee.
Cervantes, the former prison official, cited "a pattern of abuse by inmates and a pattern of abuse by staff," and blamed, in part, lax guard training.
But if both sides abuse the system, the party with the power tends to win. Not only are nearly all prisoners charged with rule violations ultimately found guilty, they usually lose their appeals, according to prisoners and officers.
"When the 'man' breaks the law, they set the worst examples imaginable," Dey wrote. "Removing the only legitimate means to have our issues heard excuses some of (the violations) prisoners commit."
At the California Correctional Center in Susanville in 2006, Dey, a Sacramento native, was sent to the hole after a guard labeled him "skinhead" and charged him with stirring racial unrest.
The inmate, who once wrote an opinion article for The Bee calling for reform of California's "three-strikes" law, denied the charge. He said that he had no history of racial incidents, tattoos or affiliations, and that he writes briefs for nonwhites and whites.
Dey filed a misconduct appeal against the guard, claiming that he was singled out for his activism. A deputy warden, Dey alleges in his court filings, unilaterally downgraded Dey's complaint to a "living condition" appeal – in effect, holding the officer blameless.
Such downgrades are common, said Johnson, the former corrections analyst who studied inmate appeals. And nearly four in 10 appeals are "screened out" – rejected as out of compliance with filing rules, according to corrections department data.
Officers who requested anonymity, retired officers, parolees and prisoners all told The Bee that when appeals do go forward, whatever the facts, the accused officer is nearly always exonerated.
Most allegations of misconduct go nowhere due to a bureaucracy "well designed by staff to discourage, in my opinion, the filing of complaints against staff," Cervantes said.
Dozens of inmates, as well as officers contacted by The Bee, agreed that appeals often disappear in many of the system's 33 prisons.
During frequent lockdowns, when inmates rarely leave their cells, "trying to get photocopies of documents is virtually impossible," said Paul Mitchell, an inmate at Salinas Valley State Prison, in a letter to The Bee. So inmates have no copies to prove their original documents were lost.
Johnson concluded after processing 10,000 appeals that regardless of merit, thousands were systematically quashed on technicalities.
"I am sure they sign these documents believing that no one will ever see or question their decision," he told The Bee, "and often render their decisions based on misguided loyalty."
To illustrate the fairness of prison due process, corrections officials said that in fiscal year 2008-09, inmates appealed more than 13,000 rule violation charges, and about 18 percent were granted.
But the data are misleading because many complaints are "partially granted." For example, an inmate who claims physical abuse often asks not to be retaliated against for filing an appeal. The anti-retaliation request often is granted.
'Daniel into the lion's den'
Another factor undermines the appeals process, according to prisoners and former officers: fear.
Edgar Martinez, back home after a recent term at High Desert, claimed that guards trampled his belongings and strip-searched him in a snow-covered yard. He said he watched guards provoke fights among inmates and tell others, "this 602 needs to go away or we're going to make your life a living hell." Afterward, Martinez said, he was too terrified to protest mistreatment.
In one 2007 case, said Edwards, the former lieutenant, several inmates were brutally beaten by guards and denied adequate treatment. None filed a complaint. "Nothing ever came of that incident. Not a damn thing," he said.
Inmates sometimes refrain from reporting abuse to avoid being shipped to other facilities. "There are staff who say, 'He's a pain, get rid of him,' " then transfer the prisoner to a location dominated by his racial or ethnic enemies, Cervantes said, "like Daniel into the lion's den."
Kernan defended the process for discovering and punishing misconduct, which includes independent oversight, court supervision and avenues for inmates and officers to complain anonymously to outside watchdogs.
The state Inspector General's Office closely monitors some investigations of serious lapses by staff, including excessive force, sexual misconduct and dishonesty. Last year it agreed with the prisons' handling of the vast majority of such cases.
Lee Seale, corrections deputy chief of staff, called that record "a departmental success story."
In 2009, 42 officers or sergeants were dismissed in misconduct cases involving prisoners. That total did not include those fired for granting prisoners special favors.
However, when officers caused moderate to severe inmate injuries – or deaths – discipline was relatively light. The Bee examined all 15 such episodes monitored by the inspector general in 2009, involving 32 officers. Eight were dismissed; most received small pay cuts or short suspensions.
In one case, an officer needlessly punched a prisoner in the head, broke his elbows and lied about it in reports. The penalty: a 12-day suspension.
An officer assigned to monitor inmates on suicide watch failed to do so and falsified his records. When he eventually did his check, he overlooked the fact that one prisoner was dead. He "also failed to notice a note the deceased inmate posted in a window on his cell door," the inspector general's report notes, "indicating his intent to commit suicide."
That officer's salary was cut by 10 percent for two years.
Such cases suggest that California prisons lack a workable process to impose reasonable discipline, said Elyse Clawson, a former correctional official in two states who served on Gov. Arnold Schwarzenegger's 2007 expert panel that examined the state prison system.
"You have to wonder," she said, "if there is a (prison) culture that assigns much value to what happens to inmates."
Editor's note: This story was changed Aug. 2 to correct that Sierra Conservation Center is east of Stockton, not west of Stockton.
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