Bureau of Independent Review Semi-Annual Report January – June 2005

O I G FFICE OF THE NSPECTOR ENERAL MATTHEW L. CATE, INSPECTOR GENERAL BUREAU OF INDEPENDENT REVIEW DAVID R. SHAW CHIEF ASSISTANT INSPECTOR GENERAL SEMI-ANNUAL REPORT JANUARY - JUNE 2005 STATE OF CALIFORNIA C ONTENTS FOREWORD ------------------------------------------------------------------------------------------------ 1 INTRODUCTION ---------------------------------------------------------------------------------------------- 3 DEVELOPMENT OF THE BUREAU OF INDEPENDENT REVIEW ----------------------------------------- 6 STAFF DEVELOPMENT AND ORGANIZATION ------------------------------------------ 6 ORGANIZATION CHART------------------------------------------------------------------- 9 TRAINING ACTIVITIES -------------------------------------------------------------------10 LIAISON ACTIVITIES ---------------------------------------------------------------------11 IMPACT OF THE BUREAU OF INDEPENDENT REVIEW ON CORRECTIONAL POLICY---------------13 CASE MONITORING ACTIVITIES -------------------------------------------------------------------------16 CRITICAL INCIDENTS --------------------------------------------------------------------16 SUMMARY OF CRITICAL INCIDENTS, JANUARY - JUNE 2005-----------------------18 ADMINISTRATIVE INVESTIGATIONS----------------------------------------------------23 SUMMARY OF ADMINISTRATIVE INVESTIGATIONS, JANUARY - JUNE 2005------25 CRIMINAL INVESTIGATIONS ------------------------------------------------------------30 SUMMARY OF CRIMINAL INVESTIGATIONS, JANUARY - JUNE 2005---------------31 SPECIAL REVIEWS------------------------------------------------------------------------------------------37 SPECIAL REVIEW INTO THE DEATH OF CORRECTIONAL OFFICER MANUEL GONZALEZ, JR.----------------------------------------------------------------37 SPECIAL REVIEW INTO THE DEATH OF INMATE DANIEL PROVENCIO -----------38 APPENDIX A: THE MADRID LITIGATION----------------------------------------------------------------40 APPENDIX B: SENATE BILL NO. 1400 (2004)-----------------------------------------------------------44 F OREWORD T he Office of the Inspector General is the state agency charged with independent oversight of California’s correctional system. Established in 1998, the office has undergone a significant number of changes in structure and staffing in recent years as its statutory mandate has expanded. One of the most important of these changes was addition of the Bureau of Independent Review in 2004. The job of the Bureau of Independent Review is to ensure the integrity of internal affairs investigations into allegations of serious misconduct inside the state’s adult prisons and youth correctional facilities. The bureau was established as a central component in a court-ordered remedial plan resulting from a federal civil rights action against the former California Department of Corrections — an action that had identified a number of serious deficiencies in the department’s officer discipline process. To remedy the problems, bureau attorneys and investigators are assigned to provide real-time, on-the-scene, oversight of investigations carried out by internal affairs investigators from the new Department of Corrections and Rehabilitation to make sure the investigations are thorough and sound and that the discipline imposed is appropriate. Among the chief goals of the Bureau of Independent Review is to make internal affairs investigations transparent to the public as a means of promoting accountability. Consistent with that purpose, California Penal Code section 6133 calls for the bureau to publish annual and semi- annual reports of its work. This report, covering the initial six months of the bureau operation is the first of those reports. As Inspector General, it has been my responsibility and privilege to assist the bureau in its formation. Staffing of the bureau began in July 2004 with the hiring of David Shaw — a former Sacramento County prosecutor with extensive law enforcement experience at the federal, state and local level — as the bureau’s chief attorney. By mid-January 2005, the bureau’s three regional offices in Rancho Cordova, Bakersfield, and Rancho Cucamonga had been fully staffed with attorneys selected through a vigorous statewide recruitment effort, and at this writing the bureau is in the process of hiring investigators to pair with these attorneys in the oversight of internal affairs investigations. With professional staff on board in its three regional offices, the Bureau of Independent Review immediately began monitoring the most serious investigations underway by the Department of Corrections and Rehabilitation’s Office of Internal Affairs. In March 2005 the bureau also played a key role in a special review into the circumstances surrounding the murder of Correctional Officer Manuel Gonzalez at the California Institution for Men, and in June 2005, the bureau conducted a special review into the death of inmate Daniel Provencio at Wasco State Prison. In addition to these activities, and along with completing an intensive training and liaison schedule during its initial months of operation, the Bureau of Independent Review also filled an important role in the reorganization of the Department of Corrections and Rehabilitation and in the development of policy affecting correctional employee discipline and other issues. By the BUREAU OF INDEPENDENT REVIEW PAGE 1 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA end of June 2005, with initial training completed, the bureau was ready to begin full monitoring of internal affairs investigations. I would like to extend my thanks to the many individuals and organizations that have assisted us during the bureau’s first months of operation. In particular, I would like to thank Special Master John Hagar of the U. S. District Court and Chief Attorney Michael Gennaco of the Los Angeles County Office of Independent Review—upon which the Bureau of Independent Review is modeled—for support and assistance during the bureau’s formation. Having the Office of Independent Review model in place has provided the bureau with an excellent roadmap to follow as we began monitoring Department of Corrections and Rehabilitation’s internal affairs operations. On behalf of the attorneys, investigators, and support staff of the Bureau of Independent Review, I invite you to review this first semi-annual report and provide us with your feedback. The bureau will regularly post reports and other information to the Office of the Inspector General’s website at www.oig.ca.gov. — MATTHEW L. CATE, INSPECTOR GENERAL BUREAU OF INDEPENDENT REVIEW PAGE 2 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA I NTRODUCTION T he catalyst for establishing the Bureau of Independent Review inside the Office of the Inspector General was the federal district court decision Madrid v. Hickman, which stemmed from a civil rights lawsuit filed by a group of inmates incarcerated at Pelican Bay State Prison in northwestern California. In that decision, U.S. District Court Judge Thelton E. Henderson held that state officials had “permitted and condoned” the use of excessive force against inmates in violation of the Eighth Amendment and that internal affairs investigations into alleged misconduct were “counterfeit” and “were pursued to avoid finding officer misconduct as often as possible.”1 Concluding that injunctive relief was both necessary and appropriate to ensure an effective remedy of the constitutional violation, the court appointed a special master experienced in prison administration to fashion an appropriate remedy and monitor the implementation of that remedy.2 In crafting a remedy for the shortcomings in internal affairs investigations and in the correctional peace officer discipline process at the California Department of Corrections (now the Department of Corrections and Rehabilitation), Special Master John Hagar consulted with Michael Gennaco, chief attorney of the Los Angeles County Office of Independent Review, which was created in 2001 to ensure the integrity of the Los Angeles County Sheriff’s Department’s internal misconduct investigations. As a result of that consultation, Special Master Hagar recommended to the court the creation of a similar office to perform real-time evaluations of internal affairs cases related to abuse of force and violations of employee ethics. The Governor’s Office proposed the creation of the Bureau of Independent Review within the Office of the Inspector General. The court and parties agreed and the bureau was established. The Bureau of Independent Review was subsequently codified with the passage of Senate Bill 1400, (Chapter 736, Statutes of 2004), sponsored by Governor Arnold Schwarzenegger and authored by Senator Gloria Romero. In July 2004, the Governor signed the bill and formally announced the creation of the Bureau of Independent Review during a press conference at Mule Creek State Prison.3 To accomplish its goals, the Bureau of Independent Review was built on a solid foundation of several important components. The first has been the commitment of significant resources by the Office of the Governor, not the least of which was the granting of 13 gubernatorial appointments to the bureau so that experienced attorneys with diverse backgrounds could be rapidly hired. Following a statewide search and recruitment process, the Bureau of Independent Review now has 12 talented, full-time, highly experienced and well-qualified attorneys with extensive backgrounds in criminal law, civil rights, and public employment law. 1 889 F.Supp. 1146 (N.D. Cal. 1990) 2 For additional information about the Madrid case and creation of the Bureau of Independent Review, see Appendix A: The Madrid Litigation. 3 For additional information concerning the legislation that led to the establishment of the Bureau of Independent Review, see Appendix B: Senate Bill No. 1400 (2004). BUREAU OF INDEPENDENT REVIEW PAGE 3 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA These dedicated professionals are developing a deep familiarity with the California Department of Corrections and Rehabilitation, a thorough knowledge of the inner-workings of the state correctional system, and expertise in best practices for addressing internal affairs investigations. This knowledge will allow the recommendations of the bureau’s attorneys to have significant impact on the outcome of internal affairs investigations and the ultimate direction of the officer discipline process. The bureau also has a full complement of support staff and other resources in each regional office to assist it in the performance of its duties. The next major addition to the bureau’s professional staff will be deputy inspector general investigators to assist the staff attorneys in monitoring internal affairs investigations. These 11 permanent full-time positions, approved in the state budget passed in July 2005, will be hired as soon as the mandatory peace officer background investigations and associated civil service requirements are completed. An initial group of deputy inspectors general has been selected following a statewide recruitment effort and has begun the background clearance process. The second key component in the success of the Bureau of Independent Review has been the cooperation and support of the internal and external stakeholders in the Madrid litigation. First and foremost, the Bureau of Independent Review has enjoyed the unqualified support of Inspector General Matthew Cate, who has made the activation of the bureau a top priority in his administration. Next, the contributions of Judge Henderson, Special Master Hagar, and Chief Attorney Gennaco of the Los Angeles County Office of Independent Review have been invaluable to the bureau, especially during its formative stages. The Bureau of Independent Review has also met regularly with senior management at the Department of Corrections and Rehabilitation and has received complete cooperation from Secretary Roderick Q. Hickman, Undersecretary Jeanne Woodford, and Chief Deputy Secretary Joe McGrath, as well as from both Mark Gantt and Martin Hoshino at the Office of Internal Affairs. The unqualified cooperation of these officials has greatly assisted the bureau in establishing itself as a respected organization within the correctional institutions and the regional internal affairs offices. The bureau staff has also met with all of the wardens and investigative staff of the California Department of Corrections and Rehabilitation facilities, as well as with most of the parole offices in each of the respective regions. In addition, the bureau has been meeting with key stakeholders, such as the California District Attorney’s Association’s Prison Crimes Committee, and the Prison Law Office, as well as with law enforcement agencies in every jurisdiction in which a prison or institution is located. Through these liaison activities, the Bureau of Independent Review has been able to fulfill an important role in the many changes made by the Office of Internal Affairs in 2005 and to contribute to other policy-making decisions. Of significant note is regular participation by the bureau in the newly formed Internal Affairs Central Intake Project, which will eventually review all requests for internal affairs investigations made statewide. The Bureau of Independent Review is also conducting an extensive review of all regulations, laws, practices and precedents affecting internal affairs investigations and the entire officer discipline process. A third major component in the early success of the Bureau of Independent Review has been its close physical proximity to each of the regional internal affairs offices of the California BUREAU OF INDEPENDENT REVIEW PAGE 4 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Department of Corrections and Rehabilitation in Rancho Cucamonga, Bakersfield, and Rancho Cordova. From the earliest stages of the bureau’s inception, it was clear that for close and effective case monitoring to occur, it was necessary for the bureau’s attorneys and investigators to be co-located with the Office of Internal Affairs regional offices. The close proximity allows the Bureau of Independent Review ready access to the people, files, and evidence needed to monitor Office of Internal Affairs investigations. In the southern region, the Bureau of Independent Review was initially established in temporary quarters in the same building as the California Department of Corrections and Rehabilitation’s Office of Civil Rights in Rancho Cucamonga. In May 2005, after renovation of a building immediately adjacent to the Office of Internal Affairs, the bureau moved into permanent space in that building. In the central region, the Bureau of Independent Review office was initially housed in temporary offices in the same building occupied by the Office of Internal Affairs in Bakersfield while the bureau negotiated a lease for permanent space in the same building. After water damage was sustained to that office, and until renovation is completed, the Bureau of Independent Review has moved temporarily into another California Department of Corrections and Rehabilitation facility two miles away. The target date for the renovation to be completed is January 2006, at which time the bureau will establish permanent quarters in that office. For the northern and headquarters regions, the bureau’s permanent office will be located in a new two-story building adjacent to the Mather Business Park in Rancho Cordova. Move-in is targeted for January 2006. In the interim, the Bureau of Independent Review offices are co-located with the Office of Internal Affairs offices in Rancho Cordova and at the Office of the Inspector General’s headquarters in Sacramento. In a significant development, the California Department of Corrections and Rehabilitation has made a decision to relocate all of its Northern California adult and juvenile internal affairs operations, including the legal staff of the Employment Law Unit, into the same new Rancho Cordova building with the bureau. That move will provide enhanced opportunities for the California Department of Corrections and Rehabilitation and the Bureau of Independent Review to meet face to face as often as necessary to make joint endeavors a success. It is important to note that although the Bureau of Independent Review’s attorneys work closely with the Office of Internal Affairs on a daily basis, the bureau has both the autonomy and the legal authority to effectively and independently monitor internal affairs investigations into serious misconduct. The bureau’s attorneys do not fall within the chain of command of the California Department of Corrections and Rehabilitation, but rather report directly to the independent California Inspector General, who has a fixed six-year term of office. This independence and legal authority are central to the strength of the Bureau of Independent Review and provide it with the means to perform its oversight role with a high degree of professionalism. — DAVID SHAW, CHIEF ASSISTANT INSPECTOR GENERAL BUREAU OF INDEPENDENT REVIEW PAGE 5 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA DEVELOPMENT OF THE BUREAU OF INDEPENDENT REVIEW The Bureau of Independent Review underwent rapid development during its first six months from January through June 2005, recruiting and hiring staff, meeting with other correctional entities and stakeholders, conducting training, and participating in internal and external policy development activities. At the same time, the bureau also began responding to critical incidents at the state’s correctional institutions and monitoring internal affairs investigations into the most serious misconduct allegations. Those activities are summarized below. STAFF DEVELOPMENT AND ORGANIZATION In addition to Chief Assistant Inspector General David R. Shaw, who heads the Bureau of the Independent Review, the bureau hired 11 full-time attorneys to staff its three regional offices in Rancho Cordova, Bakersfield, and Rancho Cucamonga. Senior attorneys, who are classified as senior assistant inspectors general, are distributed among three offices: one at the headquarters office in Sacramento, California, and the other three in the northern, central, and southern California regional offices. The staff attorneys, who are classified as special assistant inspectors general, were selected for each office so as to complement each other’s legal expertise in criminal, civil rights, and public employment law. These attorneys also possess significant experience working with law enforcement officials throughout the state. Following are brief biographical sketches of the attorneys presently serving in the Bureau of Independent Review, followed by an organization chart of the Bureau of Independent Review. HEADQUARTERS — SACRAMENTO, CALIFORNIA David R. Shaw was appointed chief assistant inspector general of the Bureau of Independent Review by Governor Arnold Schwarzenegger in July 2004. Before his appointment, Mr. Shaw served as the deputy executive officer of the Victim Compensation and Government Claims Board; executive director of the Governor’s Office of Criminal Justice Planning; chief counsel to the Assembly Public Safety Committee; and a deputy district attorney for Sacramento County, where he was cross-designated as a special assistant U.S. Attorney for the Eastern District of California. Mr. Shaw is a Lieutenant Colonel in the United States Army Reserve and an adjunct professor at McGeorge School of Law. Howard E. Moseley was appointed lead special assistant inspector general for the Bureau of Independent Review by Governor Arnold Schwarzenegger in January 2005. He previously served as a deputy attorney general in the Criminal Law Division of the California Department of Justice. While at the Attorney General’s Office he was a member of the trial litigation team, was appointed the legal liaison for the California Witness Protection Program, and was the primary reviewer of criminal referrals from the California Department of Corrections. Before that, he was a linguist in military intelligence for the United States Army. BUREAU OF INDEPENDENT REVIEW PAGE 6 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA NORTHERN REGIONAL OFFICE, RANCHO CORDOVA, CALIFORNIA Tim Rieger was appointed senior assistant inspector general of the Bureau of Independent Review, Northern Region, by Governor Arnold Schwarzenegger in May 2005. Before his appointment, Mr. Rieger served as the deputy director and chief counsel for the California Attorney General's Department of Justice Firearms Division. He also served the California Attorney General for several years as a deputy attorney general in the Criminal Division. Before he began his ten years with the Attorney General's Office, Mr. Rieger worked as a prosecutor in the Sacramento County District Attorney's Office. Mr. Rieger is a major in the Judge Advocate General's Corps, serving in the 22nd Legal Support Organization, United States Army Reserve. Neil Robertson was appointed special assistant inspector general for the Bureau of Independent Review, Northern Region, by Governor Arnold Schwarzenegger in January 2005. Prior to his appointment, Mr. Robertson served as senior tax counsel in the General Counsel Section of the California Franchise Tax Board, where he represented the department in all aspects of public sector employment law and provided legal support to the Criminal Investigations Unit for prosecution of state tax crimes. He also served as staff counsel to the California Department of Corrections, Office of Internal Affairs and as legal counsel representing law enforcement agents with the California Union of Safety Employees and the California Correctional Peace Officer’s Association. Abel D. Ramirez was appointed special assistant inspector general for the Bureau of Independent Review, Northern Region, by Governor Arnold Schwarzenegger in January 2005. Before his appointment, Mr. Ramirez served as staff counsel for the California Youth Authority, where he represented the department in administrative hearings before the State Personnel Board. Mr. Ramirez also worked as a prosecutor for several years in the Sacramento County District Attorney’s Office and as a deputy probation officer for the Sacramento County Probation Office. CENTRAL REGIONAL OFFICE—BAKERSFIELD, CALIFORNIA Robert Allen Barton was appointed senior assistant inspector general for the Bureau of Independent Review, Central Region, by Governor Arnold Schwarzenegger in January 2005. Mr Barton began his career in law enforcement with the Fresno County Sheriff’s Department. After obtaining his law degree, Mr. Barton became a deputy district attorney for Kern County, where he worked in the Special Prosecutions Unit and was the supervising deputy district attorney of the Juvenile and Truancy Units, Gang Unit, and Prison Crimes Unit. Mr. Barton has been an adjunct faculty member with California State University-Bakersfield and Bakersfield College, teaching courses in public speaking, criminal law, gangs and crime, and media law. Anna M. Ferguson was appointed special assistant inspector general for the Bureau of Independent Review, Central Region, by Governor Arnold Schwarzenegger in January 2005. Before her appointment, Ms. Ferguson served as a deputy district attorney in Kings County, leading the Drug Crimes, Prison Crimes, Sexual Assault, and Domestic Violence Units. In addition, Ms. Ferguson has worked as a deputy public defender for Tulare County and has several years of civil litigation experience. BUREAU OF INDEPENDENT REVIEW PAGE 7 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA L. Gordon Isen was appointed special assistant inspector general for the Bureau of Independent Review, Central Region, by Governor Arnold Schwarzenegger in January 2005. Prior to his appointment, Mr. Isen served as a deputy district attorney for San Bernardino County, prosecuting major felonies in San Bernardino and Santa Cruz counties. In addition to his criminal trial work, Mr. Isen served as lead attorney of a white-collar crime unit and as a narcotics team supervisor. Mr. Isen has served his community as a reserve police officer and as a Judge Pro Tem. Michael G. Allford was appointed special assistant inspector general for the Bureau of Independent Review, Central Region, by Governor Arnold Schwarzenegger in July 2005. Prior to his appointment, Mr. Allford served as a deputy city attorney for the City of Bakersfield, where he was legal advisor to the Bakersfield City Council and served on numerous city commissions and boards. Mr. Allford has worked in private practice representing plaintiffs and defendants in the areas of employment law and land use. SOUTHERN REGIONAL OFFICE—RANCHO CUCAMONGA, CALIFORNIA Stephen Miller was appointed senior assistant inspector general for the Bureau of Independent Review, Southern Region, by Governor Arnold Schwarzenegger in January 2005. Before his appointment, Mr. Miller worked as an attorney for 22 years in private practice litigating cases involving police misconduct, civil rights, medical malpractice, employment law, and other torts in state and federal court. He recently served as part-time U.S. Magistrate Judge in the Central District of California presiding over federal criminal matters. Mr. Miller has served as a school board member for a local school district and the County of San Bernardino. He was a reserve peace officer and continues to work as a crew chief/medic on an air rescue helicopter with a local sheriff’s department in Southern California. Sue Stengel was appointed special assistant inspector general for the Bureau of Independent Review, Southern Region, by Governor Arnold Schwarzenegger in January 2005. Prior to her appointment, Ms. Stengel served as western states counsel for the Anti-Defamation League, a national civil rights organization. There she worked with law enforcement, educators, and community groups combating hate crimes and extremism and preserving religious liberty. She also served as a deputy public defender in Los Angeles County. Ms. Stengel has worked as an instructor for the California Commission on Peace Officer Standards and Training and the Federal Law Enforcement Training Center. Paul Hayashida was appointed special assistant inspector general for the Bureau of Independent Review, Southern Region, by Governor Arnold Schwarzenegger in January 2005. Prior to his appointment, Mr. Hayashida worked as the officer-in-charge of the Complaint Intake and Review Section for the Los Angeles Police Commission’s Office of the Inspector General, where he supervised a team of analysts during their review of hundreds of Los Angeles Police Department internal affairs investigations. He also worked as an associate attorney with Francell, Stickland, Roberts and Lawrence, where he represented the interests of law enforcement agencies and sworn officers in federal and state litigation. Mr. Hayashida served as a sworn member of the Glendale Police Department, retiring after twenty years as a police sergeant with significant patrol, major narcotics, personnel, and internal affairs experience. BUREAU OF INDEPENDENT REVIEW PAGE 8 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA ORGANIZATION CHART Chief Assistant Inspector General David R. Shaw Headquarters Northern Region Central Region Southern Region Sacramento Rancho Cordova Bakersfield Rancho Cucamonga Lead Special Senior Assistant Senior Assistant Senior Assistant Assistant Inspector General Inspector General Inspector General Inspector General Tim Rieger Robert Barton Stephen Miller Howard Moseley Deputy Special Assistant Special Assistant Special Assistant Inspectors General Inspectors General Inspectors General Inspectors General 3 Vacancies Neil Robertson Anna Ferguson Sue Stengel Abel D. Ramirez L. Gordon Isen Paul Hayashida Michael Allford Executive Assistant Deputy Deputy Deputy Inspectors General Inspectors General Inspectors General Myrna Causland 3 Vacancies 2 Vacancies 2 Vacancies Office Office Office Technician Technician Technician Robin Campos Michelle White Cheryl Campbell BUREAU OF INDEPENDENT REVIEW PAGE 9 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA TRAINING ACTIVITIES During the first six months of the bureau’s operation, special assistant inspectors general and senior assistant inspectors general underwent intense training on the protocols of the bureau as well as a detailed introduction to the California Department of Corrections and the California Youth Authority (now consolidated as the California Department of Corrections and Rehabilitation), with an emphasis on internal affairs investigations. Experts in all aspects of California’s penal system contributed to a comprehensive overview. Beginning the week of January 24, 2005, the bureau staff participated in a week-long orientation at the bureau’s headquarters in Sacramento. In addition to handling various administrative matters, including personnel matters and dissemination of equipment, the staff began its introduction to substantive issues. The group was addressed by federal Special Master John Hagar and was provided with a history and overview of the role of the special master as it pertains to the state’s correctional departments. In addition, Michael Gennaco and Steve Connolly, of the Los Angeles Office of Independent Review addressed the mission of independent review. Mechanical issues, such as developing protocols, handling major incident scene investigations, “cradle to grave” monitoring, case reporting, and promotion of reform were also on the agenda. The week concluded with training in actual Bureau of Independent Review protocols, reporting on the case management system and handling of “roll outs”— response to incidents. Because Bureau of Independent Review attorneys and investigators are sworn peace officers, in February they attended Penal Code section 832 training. The first week of training covered the laws of arrest, search, and seizure, and the second week covered weaponless defense, arrest and firearms familiarization, and firearms qualification at the firing range. From March 14 to March 17, the Bureau of Independent Review held its first quarterly all-staff meeting in Sacramento. The staff received an introduction to the functions of Department of Corrections and Rehabilitation’s Law Enforcement Investigations Unit and the Deadly Force Review Board. Included in this presentation was an overview of prison gangs and gang investigations. The quarterly meeting served as an opportunity for the bureau staff to be introduced to the Department of Corrections and Rehabilitation’s vertical advocates, and to receive a briefing on the vertical advocate function. Included in this session was training on critical legal issues pertaining to internal affairs investigations and the disciplinary process. Topics such as statutes of limitations and how they are tolled, compelling subjects to give statements, and the Peace Officers Bill of Rights were covered. In addition to the vertical advocate role, the bureau staff was informed of the role of employee relations officers and litigation coordinators at the institutions. Finally, an overview of the newly created central intake process, used to evaluate and assign internal affairs investigations, was discussed. Bureau of Independent Review staff attended additional and more in-depth training on the department’s Law Enforcement and Investigations Unit from April 11 through April 15. Topics during this training included gang investigations, critical incident management, parole searches, search warrants, parolee-at-large investigations, officer-involved shootings, officer safety, and Department of Justice drug lab agent safety techniques. BUREAU OF INDEPENDENT REVIEW PAGE 10 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA From June 1 through June 3, the Bureau of Independent Review staff attended a seminar entitled “Prison Investigations, Evidence and Prosecutions,” hosted by the California District Attorneys’ Association. The seminar covered several relevant topics, including crime scene preservation, evidence collection and documentation, electronic surveillance in correctional settings, administrative searches, Miranda and interrogation in prison, and the Peace Officer Bill of Rights. The seminar also provided an opportunity for the Bureau of Independent Review staff to be introduced to many of the deputy district attorneys who prosecute prison crimes. The week of June 20, 2005, the Bureau of Independent Review held its second quarterly meeting in Rancho Cucamonga. Many of the training topics previously addressed were revisited and addressed in more detail with respect to the bureau staff. The training included crime scene preservation, a presentation from the Los Angeles County Office of Independent Review on “cradle-to-grave” monitoring, the role of public reporting, and critical incident response. A presentation was also made to the bureau staff on the Department of Corrections and Rehabilitation’s use-of-force policy, the inmate complaint process, access to inmate records, responsibilities of employee relations officers and litigation coordinators, legal admonishments during employee interviews, and the civil service disciplinary process through the State Personnel Board. In addition, the Bureau of Independent Review was given an overview of the training curriculum for correctional staff and for special agents of the Office of Internal Affairs. Finally, the bureau staff learned how to use the California Law Enforcement Tracking System and received training on the Office of Internal Affairs case management system. LIAISON ACTIVITIES Attorneys in each of the Bureau of Independent Review’s regional offices have visited and toured every California Department of Corrections and Rehabilitation institution in the region and held meetings with key personnel. Whenever possible, the bureau’s attorneys in each region held these meetings as a group. At each meeting the Bureau of Independent Review introduced the attorneys, discussed the bureau’s mission and protocols, and described its anticipated interaction with the California Department of Corrections and Rehabilitation staff. The following describes some of those face-to-face meetings. Adult Institutions. The Bureau of Independent Review has visited 28 of the 33 adult institutions in the California Department of Corrections and Rehabilitation. At the institutions, the bureau met with wardens, chief deputy wardens, associate wardens, and other executive staff members. The bureau also met with employee relations officers, investigative services unit personnel, institutional gang investigators and lieutenants, and sergeants responsible for conducting fact- findings and inquiries into allegations of employee misconduct. When the bureau has been unable to meet with the above personnel during initial visits, the bureau has returned to the institutions to engage in such meetings. The bureau has also taken comprehensive tours of many of the institutions, including some of the fire suppression and conservation camps. Youth Facilities. The Bureau of Independent Review has visited four of the Department of Corrections and Rehabilitation’s eight youth correctional facilities and reception center/clinics. Visits included tours and meetings with the superintendent or other executive staff. Since the BUREAU OF INDEPENDENT REVIEW PAGE 11 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA initial visits, the bureau’s attorneys have returned to some of the facilities to meet with appropriate personnel to discuss the inquiry, investigation, and disciplinary process involving alleged staff misconduct. Office of Internal Affairs. Bureau of Independent Review attorneys have met with all of the California Department of Corrections and Rehabilitation’s Office of Internal Affairs staff in their respective regions in the both the adult division and the juvenile division. The bureau’s senior assistant inspectors general and their counterparts, the California Department of Corrections and Rehabilitation’s special agents-in-charge of internal affairs, have also met individually on numerous occasions. Law Enforcement and Investigations Unit. At the invitation of the Bureau of Independent Review, several senior staff members from the Law Enforcement and Investigations Unit of the California Department of Corrections and Rehabilitation attended a January training conference held at the Office of the Inspector General’s headquarters and addressed the Bureau of Independent Review staff concerning the Law Enforcement and Investigations Unit’s organizational structure and mission. In addition, bureau staff has attended Deadly Force Review Board meetings presented by the Law Enforcement and Investigations Unit, and several Bureau of Independent Review attorneys participated in a week-long Law Enforcement and Investigations Unit training academy in March 2005. Each of the Bureau of Independent Review regions has also held meetings with essential personnel at the local Law Enforcement and Investigations Unit office. Parole Administration. The Bureau of Independent Review staff has met with adult parole officials from the Department of Corrections and Rehabilitation’s Division of Adult Parole Operations at the Fresno, Hanford, Bakersfield, and Visalia field offices, as well as with juvenile parole officials from the department’s Division of Juvenile Parole Operations at the Bakersfield field office. In addition, the bureau met with regional officials responsible for both the adult and juvenile parole operations throughout the northern California area. District Attorneys’ Offices. Because district attorneys prosecute the crimes that occur within California Department of Corrections and Rehabilitation institutions and facilities, including crimes committed by department personnel, the bureau recognized it is important to communicate with these prosecutors often and early in every case. Accordingly, during this reporting period, each of the bureau’s regional offices held meetings with essential personnel at the district attorneys’ offices in Sacramento, Los Angeles, Kern, Kings, San Bernardino, San Diego, and Monterey counties. Also, the bureau collaborated with the California District Attorneys Association to form the Prison Crimes Working Group, made up of representatives from the bureau, the association, and the department, as well as members of the Attorney General’s Office, representatives from various district attorneys’ offices, and local law enforcement officials. The working group meets every other month to address legal and procedural issues of mutual concern. BUREAU OF INDEPENDENT REVIEW PAGE 12 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA IMPACT OF THE BUREAU OF INDEPENDENT REVIEW ON CORRECTIONAL POLICY During its initial months of operation, the Bureau of Independent Review has actively participated in policy decisions affecting the California Department of Corrections and Rehabilitation. CENTRAL INTAKE COMMITTEE In the fall of 2004, the California Department of Corrections and Rehabilitation (then the Youth and Adult Correctional Agency) established the Strategic Planning Internal Affairs Team to meet and review proposed changes to the employee disciplinary process. The team was made up of every major stakeholder in the department’s disciplinary process, as well as Chief Assistant Inspector General David Shaw of the Bureau of Independent Review. After significant discussion and consideration, the team recommended that the department establish a centralized intake process to review requests for internal affairs investigations agency-wide, with the goal of reducing or eliminating confusion about which entity (institutional, regional, or headquarters) is responsible for conducting a given investigation. The team also concluded that a central intake process would improve consistency and fairness in the investigative process. The team also recommended eliminating the designation of Category I and II internal affairs investigations and recommended instead that a central intake committee assess all investigative requests and assign investigations, eliminating the need for categorization. Under the proposal, requests for investigation would be either accepted and assigned to an investigator or returned to the referring entity for additional information or direct resolution by the employee’s supervisor. The central intake concept was approved by the California Department of Corrections and Rehabilitation and adopted in May 2005, and a Central Intake Committee has now been established. The Central Intake Committee is made up of California Department of Corrections and Rehabilitation investigators from the Office of Internal Affairs and California Department of Corrections and Rehabilitation employment law attorneys from the Employment, Advocacy and Prosecution Team, as well as representatives from the Bureau of Independent Review. Department experts, such as representatives from the Health Care Services Division staff, are also invited to participate to assist the Central Intake Committee with the specialized knowledge sometimes necessary for the committee to make an informed decision. California Department of Corrections and Rehabilitation hiring authorities, other senior management, employment relations officers, and institution investigators are invited to observe and participate in the process. The Central Intake Committee now assesses each request for investigation as part of the intake process, determines whether a criminal or administrative investigation is appropriate, and assigns that case to the appropriate investigative unit (for instance, the Office of Internal Affairs, the institution’s investigative services unit, or the Office of Civil Rights), depending on the nature and location of the investigation. Conversely, if a complaint does not warrant investigation, it is returned to the referring entity for disposition or closure at that level. BUREAU OF INDEPENDENT REVIEW PAGE 13 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Since May 4, 2005, the Central Intake Committee has convened weekly to conduct this review. At these meetings the committee is briefed on the facts of each case by special agents assigned to the Office of Internal Affairs and is provided with a copy of the Internal Affairs Investigative Request (Form 989) and other supporting documentation. The committee then engages in a roundtable discussion of the request to determine whether an investigation is warranted. If appropriate, the case is then assigned to one of several investigative entities. Typically, the case is assigned to one of the Office of Internal Affairs regional offices, but it may instead be assigned to Office of Internal Affairs headquarters or to the Office of Civil Rights, depending on the sensitivity and nature of the allegation. That entity may in turn assign the case to an Office of Internal Affairs special agent or to an institution investigator who has been specially trained to conduct internal affairs investigations. If the case is assigned to an institution investigator, it is nevertheless supervised by a senior special agent from the Office of Internal Affairs regional office. Investigations involving alleged criminal violations, excessive force, inmate deaths or serious injury, officer integrity issues or other serious allegations made against California Department of Corrections and Rehabilitation supervisors, however, are generally assigned to an Office of Internal Affairs special agent. Following assignment of the case, all of the investigative work that follows can be easily tracked using the case management system database developed exclusively for the Office of Internal Affairs. The case management system serves not only as a management tool for the Office of Internal Affairs, but is also accessible by the Bureau of Independent Review and the Employment, Advocacy and Prosecution Team to ensure real-time oversight by the Bureau of Independent Review and a smooth transition of the case to the Employment, Advocacy and Prosecution Team in the event a disciplinary action ensues. In sum, the central intake process has already demonstrated significant advantages over the previous model in the relatively short time that it has been operational. Thus far, requests for internal affairs investigations are submitted to the Central Intake Committee by approximately half of all the adult institutions statewide. The California Department of Corrections and Rehabilitation is projecting that all of its institutions and facilities will be using the central intake process by December 2005. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION OPERATIONS MANUAL Along with the structural reorganization of the California Department of Corrections and Rehabilitation and the establishment of the Bureau of Independent Review, an extensive review and update of the department’s Department Operations Manual was commenced by the Strategic Planning Internal Affairs Team in fall 2004. Article 22 encompassing the employee disciplinary process was the first section of the operations manual to be revised. The proposed changes were reviewed and edited by the Bureau of Independent Review and the chief legal counsel for the Office of the Inspector General to ensure compliance with the law, clarity of process, and appropriate input and oversight by the bureau. The court-appointed expert in Madrid v. Woodford also reviewed the proposed changes to verify conformity with the court’s orders and objectives in that case. After several sessions with the team, a final draft of Article 22 has been submitted to the federal court for approval. BUREAU OF INDEPENDENT REVIEW PAGE 14 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Highlights of the revisions include clarification of the vertical advocate model, which ensures legal representation for the California Department of Corrections and Rehabilitation during the entire investigative and disciplinary process. Incorporated into the system is regular and continuous contact between the department and the Bureau of Independent Review to address the bureau’s statutory mandates of contemporaneous oversight of the adequacy of investigations and appropriateness of any discipline. An executive review process was established to resolve significant disagreements between the vertical advocates, department management, and the bureau related to investigative findings, imposition of disciplinary penalties, and settlement agreements. Among other revisions was a change to the Skelly hearing process, which is an informal proceeding in which a disciplined employee has an opportunity to respond to an uninvolved manager before discipline becomes effective. In the past, the manager conducting the Skelly hearing had authority to modify the discipline without consulting with the manager who imposed the discipline. The new policy provides that the Skelly hearing officer only makes recommendations in writing to amend, modify, withdraw, or sustain the discipline, while the manager who imposed the discipline has the final authority as to what discipline is imposed. The Bureau of Independent Review is to be consulted before any modifications to discipline are implemented. In addition to its work on policies affecting the employee disciplinary process, the Bureau of Independent Review is in the process of reviewing the policies governing internal affairs investigations, whistleblower retaliation, administrative immunity, subpoenaed witness notification, and incompatible activities. Every major stakeholder in each policy revision has had the opportunity to review and discuss each proposal and to suggest changes. Through this process, the interests of the various stakeholders can be identified and incorporated into the policies. The objective of this process is to ensure department-wide consistency and fairness in the application of the policies. The expectation is that the policies currently under review will be finalized by the end of the calendar year and can be submitted to the federal court for approval. BUREAU OF INDEPENDENT REVIEW PAGE 15 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA CASE MONITORING ACTIVITIES To accommodate the intensive training sessions necessary for the staff attorneys in this new endeavor, it was determined that full monitoring by the Bureau of Independent Review would not commence until July 1, 2005. Nonetheless, the Bureau of Independent Review elected to respond to critical incidents and to monitor selected cases during the initial January-June 2005 reporting period to familiarize bureau attorneys with the Office of Internal Affairs investigative process and the California Department of Corrections and Rehabilitation disciplinary process, as well as to evaluate the efficacy of the newly drafted Bureau of Independent Review protocols. The tables below summarize the critical incidents to which the bureau staff responded and the criminal and administrative investigations monitored by the bureau during the initial reporting period. It is important to note that, depending on the circumstances, not all critical incidents result in a criminal or administrative investigation. It is also important to note that not all cases monitored during the reporting period are listed here. Although it is the goal of the Bureau of Independent Review to report on every case in a timely manner, there are several exceptions. For instance, criminal investigations will be included in public reports only after the local district attorney has reviewed the case. Likewise, administrative investigations will be reported only after the hiring authority has made its findings in the case. And in all instances, the Bureau of Independent Review retains discretion to delay reporting on a particular investigation if to do so will jeopardize the case. Most cases monitored, however, will be reported within the corresponding reporting period. With full monitoring under way as of July 1, 2005, the bureau’s future reports will also include data on the number, type, and disposition of cases monitored during each six-month period. CRITICAL INCIDENTS Critical incidents are those involving the significant use of force or incidents resulting in the death or serious injury of an inmate. Correctional officers at the California Department of Corrections and Rehabilitation are authorized and trained to use force, including deadly force, in certain circumstances. Correctional officers routinely encounter situations in which the use of force may be necessary, for example, in self defense, to protect others, to prevent an escape, or to control a riot. When the level of force used appears to exceed the legally justifiable level or results in disproportionate injuries to the recipient, however, the actions of the correctional officer involved require scrutiny. The use of significant force in which an inmate is seriously injured or killed frequently result in public complaints and inquiries by legislators, the media, and prisoners’ rights organizations. Such incidents, though infrequent, often result in civil actions against the officers and the California Department of Corrections and Rehabilitation. Occasionally, such incidents result in the filing of criminal charges at the state or federal level against the officers involved. The death or serious injury of an inmate is also an event in which the public has active interest and a right to know whether the officer’s actions were appropriate. Because the use of significant force is one of the most potentially controversial exercises of authority by correctional officers, the Bureau of Independent Review has a responsibility to BUREAU OF INDEPENDENT REVIEW PAGE 16 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA respond immediately to such incidents. The unexpected or unexplained death, murder, or suspicious suicide of an inmate at a correctional institution or facility may point to a related problem in staff supervision, training, or conduct as a contributing factor. Investigating inmate assaults upon staff, which can cause significant or life-threatening injuries, is also essential in bringing the perpetrator to justice and preventing similar occurrences in the future. Due to the sensitivity of use-of-force incidents and inmate deaths from other than natural causes, coupled with the perishable nature of evidence in institutional settings, the Bureau of Independent Review makes every effort to respond to these incidents at once —meaning that the bureau dispatches an attorney to the scene immediately. Key to the success of this effort is early notification of such incidents by the institution staff to the Bureau of Independent Review and the Office of Internal Affairs. To facilitate early notification, it is now the practice of the California Department of Corrections and Rehabilitation to include the Bureau of Independent Review in its critical incident notification procedures. In addition, the Assistant Secretary of the Office of Internal Affairs and the Bureau of Independent Review Chief Assistant Inspector General regularly communicate with one another whenever a significant use-of-force incident occurs to determine whether the required notification has taken place. Once notification is made, the Bureau of Independent Review attorney assigned to the institution is normally the one dispatched to respond to the incident. During non-business hours, including weekends, a Bureau of Independent Review attorney in each region is “on-call” at all times to receive the notification. The Bureau of Independent Review currently responds in such a manner to all incidents involving the use of significant force, serious assaults upon staff, and inmate deaths from other than natural causes. Bureau of Independent Review attorneys respond immediately to these events to get a first-hand look at the scene and to spot investigative and legal issues that may need special attention during the Office of Internal Affairs investigation. When Bureau of Independent Review attorneys respond to an incident, whether a shooting, a riot, or serious injury to a staff member or inmate, the purpose is to ensure that the incident undergoes a thorough, unbiased, and objective investigation by the proper authorities when circumstances call for an investigation. Armed with the results of a thorough investigation, the California Department of Corrections and Rehabilitation can use the information not only to determine whether discipline is warranted, but also to assess training areas needing attention to improve the safety of the correctional institution, its employees, and the inmate population. The following table summarizes the incidents to which Bureau of Independent Review attorneys responded during the January through June 2005 reporting period. BUREAU OF INDEPENDENT REVIEW PAGE 17 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRITICAL INCIDENTS — JANUARY-JUNE 2005 SUMMARY OF INCIDENT BUREAU ACTIONS BUREAU IMPACT CONCLUSIONS & NOTES On August 28, 2004, the Office of Internal The bureau met with the institution The bureau took steps to ensure that the The institution Affairs notified the Bureau of Independent warden and executive staff; consulted local sheriff’s department, in conjunction acknowledged the late Review of an inmate death that had occurred with the institution’s investigative with the local district attorney's office, notification to the the previous day. The inmate died in the services unit; viewed the scene; and conducted a homicide investigation of the bureau and took steps to prison infirmary following two separate reviewed preliminary reports prepared by incident (the sheriff's department initially remedy the problem. physical confrontations with correctional the staff members involved concerning declined). In addition, at the bureau’s officers. The officers used a significant the incident. request, the director of the Department of amount of OC pepper spray before applying Corrections and Rehabilitation issued a a spit mask over the inmate’s head, but did statewide policy memorandum restricting not decontaminate the inmate following the the use of spit masks on inmates after second confrontation.4 they have been sprayed with OC spray unless and until they have been thoroughly decontaminated. On November 30, 2004, an inmate was The Bureau of Independent Review The bureau provided independent The bureau noted that observed on an exercise yard stabbing arrived at the institution shortly after the oversight of the deadly force investigation the investigators another inmate with a weapon. Despite incident. The bureau met with executive and the review process. responded to the scene verbal warnings and a warning shot, the staff and the institution’s investigative in a timely manner. The inmate continued to assault the victim. A services unit; viewed the scene, reviewed report prepared by the correctional officer fired one round from a videotapes of the incident, reviewed Law Enforcement and rifle in response, striking the inmate in the evidence; and consulted with the Investigations Unit was ribcage. The inmate collapsed on the ground responding Office of Internal Affairs and satisfactory. Also, the and died in the facility clinic shortly Law Enforcement Investigations Unit Deadly Force Review thereafter. The victim sustained three stab investigators. Board subsequently wounds in the neck and chest but concluded that the subsequently recovered. Investigators from shooting was within the Office of Internal Affairs and the Law policy, a conclusion Enforcement and Investigations Unit arrived with which the bureau on the scene within an hour of the shooting.5 agrees. 4 This incident is included here even though it did not take place within the January – June 2005 reporting period in order to help provide a complete summary of the initial activities of the Bureau of Independent Review. 5 Ibid. BUREAU OF INDEPENDENT REVIEW PAGE 18 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTIONS BUREAU IMPACT CONCLUSIONS & NOTES On December 31, 2004, the Bureau of At the January 3, 2005, meeting, the Of significant note was the institution’s The sheriff’s Independent Review received notification bureau consulted with the institution’s untimely reporting of the incident and department completed from the Office of Internal Affairs that an warden and investigative services unit premature assessment that force was not a its investigation in a inmate had been pronounced dead the and actively solicited the assistance of the contributing factor in the inmate’s death. timely manner once the previous day following a use-of-force sheriff’s department to take the lead in the Procedures were discussed to prevent a issue of its involvement incident involving two correctional officers. investigation. The sheriff’s department similar occurrence in the future—namely, in the investigation was The institution initially reported that the accepted that responsibility and that an investigation would commence for resolved. inmate’s death was not the result of the conducted numerous staff interviews the all use-of-force incidents in which an force applied during the incident, but an same day. Before leaving the institution inmate dies or sustains serious bodily autopsy conducted on January 1, 2005, on January 4, 2005, the bureau toured the injury unless and until an autopsy determined that force may have contributed scene of the incident, conferred with the determines that the cause of death was not to the inmate’s death. The autopsy findings warden individually, and received a the result of the force applied. The bureau were reported to the bureau immediately briefing on the investigative interviews also recommended and was involved in and the bureau was asked to attend a from the sheriff’s department. follow-up discussions that led to a meeting scheduled for January 3, 2005, with memorandum of understanding between the San Diego Sheriff’s Department to the institution and the sheriff’s determine the investigative strategy for the department clarifying their respective case.6 roles and duties in future use-of-force incidents. On March 13, 2005, the Bureau of The bureau responded to the institution The bureau provided independent The institution’s Independent Review was notified of a immediately and found that the inmate oversight of the death investigation and investigative services suspicious inmate death. The inmate was had already died. It became evident as the evidence processing. The bureau’s unit responded to the found in his cell bleeding from the arm. He investigation progressed that the inmate relationship with local agencies facilitated incident in a was removed from the cell, but life-saving had purposely punctured an artery and the timely response of the county crime professional and measures were unsuccessful and he that his death was a suicide. The bureau lab, which greatly assisted in resolving thorough manner. subsequently died. ensured that proper protocols were the cause of death. followed in preserving and processing the scene and in conducting witness and suspect interviews. The bureau also assisted in having the local district attorney’s crime lab respond and process the physical evidence. The bureau followed up by reviewing all of the evidence and reports in the case. 6 Ibid. BUREAU OF INDEPENDENT REVIEW PAGE 19 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTIONS BUREAU IMPACT CONCLUSIONS & NOTES On March 20, 2005, an institution called the The bureau responded to the institution The bureau provided independent The district attorney Bureau of Independent Review to report the and was joined by employees from the oversight of the investigation and filed a homicide case homicide of an inmate who had allegedly institution’s investigative services unit evidence processing and provided advice against the cellmate. been killed by his cellmate. and investigators from the local district regarding witness interview order, scope, That case is now attorney’s office. The bureau monitored and depth. The bureau also identified a pending. the investigation to ensure proper systemic problem with the release of collection of physical evidence, inmate records by the California preservation of the crime scene, and Department of Corrections and planning for witness interviews. Rehabilitation in criminal investigations. On April 7, 2005, an inmate collapsed at an The bureau did not take action because it The Bureau of institution and was taken to a hospital, was not notified of the death. Independent Review did where he was pronounced dead at not receive notice of the approximately 8:15 a.m. The institution incident from the contacted an investigator at the local district institution, but instead attorney's office that morning and reported was notified by the that an inmate had died of unknown causes. investigator from the The autopsy eventually ruled the cause of district attorney’s death to be natural and attributable to an office. The bureau existing condition, along with pulmonary clarified its call-out embolism, thrombosis, and hypertension. procedure with the institution to ensure timely notice of suspicious inmate deaths in the future. On April 7, 2005, the Bureau of The bureau remained at the institution for The bureau suggested corrective action to Once the institution Independent Review joined investigators a total of six days, during which time the the institution’s holding cell policies. management discovered from the Office of Internal Affairs in bureau staff attended approximately 17 After consultation with the bureau, the the issue, the bureau response to a report that an inmate had been staff interviews, visited the scene, and institution took remedial measures to detected no deficiencies held in a phone booth-sized wire-mesh ensured that photographs of the scene improve its holding cell policies. The in the institution’s holding cell for approximately seven days. were taken and that physical evidence Department of Corrections and response to the incident Shortly after the investigation began, the was collected. Rehabilitation subsequently issued a and no deficiencies in bureau learned that a second inmate had statewide memorandum directing the the response of the been housed in a similar but somewhat development and implementation of Office of Internal larger wire-mesh holding cell for the same revised procedures governing the use of Affairs. period of time. all such holding cells. BUREAU OF INDEPENDENT REVIEW PAGE 20 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTIONS BUREAU IMPACT CONCLUSIONS & NOTES Disciplinary action is now pending. On May 17, 2005, the Bureau of The bureau consulted with the The bureau ensured that the initial The Monterey County Independent Review responded to the institution’s investigative services unit, investigation was handled appropriately District Attorney's alleged homicide of an inmate who viewed the scene, and reviewed and then handed off to local law Office has initiated a reportedly had been beaten to death by his preliminary reports prepared by the enforcement for supplemental criminal investigation cellmate, who had been moved into the cell institution staff concerning the incident. investigation and prosecution. The bureau into the matter. That two days earlier. An hour before staff also identified a problem with the matter is still pending. became aware of the assault, the victim had classification level of the inmate who been seen by a medical technical assistant conducted the assault. That matter is for diabetes testing. At that time, a presently under investigation. correctional officer accompanying the assistant observed that the victim's speech was slurred and that he appeared to be shaking and sweating. When the officer checked on the victim’s status 40 minutes later, he found the victim unconscious in the cell. The victim was declared dead at the scene. On June 5, 2005, the Bureau of Independent The bureau did not respond to the The bureau discussed the issue of late The bureau is Review received notification of a use-of- institution due to the late notification and notification with the institution, which monitoring the criminal force incident that had occurred at the fact that the scene had already been readily acknowledged the error. Steps investigation by the approximately 9:00 p.m. the previous day. cleared. Instead, the bureau made have been taken to remedy the problem. Office of Internal During the incident, two correctional immediate contact with the hospital to Affairs and the officers fired less-than-lethal rounds using a determine the inmate’s condition. The management review 37mm rifle in the direction of four inmates bureau then notified the Office of Internal undertaken by the Law who were engaged in a fight and one officer Affairs of the situation. The bureau Enforcement and fired a less-than-lethal round using a 40mm maintained telephone contact with the Investigations Unit as a launcher. One inmate was hit in the head institution on a continuous basis and result of the incident. and taken to the hospital. The institution’s updates were provided to the bureau by investigative services unit initially the institutional staff for approximately investigated the incident. two hours, until the bureau was advised by the staff at the hospital that the inmate was stable and no longer in critical condition. BUREAU OF INDEPENDENT REVIEW PAGE 21 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTIONS BUREAU IMPACT CONCLUSIONS & NOTES On June 22, 2005, the Office of Internal Because of the life-threatening nature of During the bureau’s consultations with The bureau continues to Affairs called the Bureau of Independent the inmate’s injuries, the bureau the institution, the institution identified monitor the criminal Review to notify the bureau that an inmate responded immediately to the institution. several concerns regarding its own homicide investigation had been severely beaten at an institution by response to the incident, particularly the by the institution’s unknown suspects. Upon making direct need to improve its ability to protect investigative services contact with the institution’s investigative crime scenes and collect evidence. unit, which has already services unit the bureau learned that the resulted in the inmate was not expected to survive. The identification of at least inmate died several days later. five suspects. On June 28, 2005, the Office of Internal Because the bureau was at a nearby The bureau identified several issues of The issues previously Affairs called the Bureau of Independent institution on an unrelated matter, the concern that arose during the raised by the bureau are Review to advise the bureau that it was bureau arrived at the institution before investigators’ initial response to the the subject of continued responding to an institution where a non- any of the internal affairs investigators. incident, including the length of the legal research and sworn employee was being detained by the Upon arrival, the bureau received a suspect-employee’s initial detention, the further discussion with institution’s investigative services unit for briefing from the institution’s procedures followed during the suspect- the Office of Internal introducing contraband to an inmate at the investigative services unit. The bureau employee’s initial interview, and the Affairs. A criminal institution. observed the activities of both the protection afforded the suspect- prosecution of the investigative services unit and the Office employee’s right to union representation. employee is pending. of Internal Affairs throughout the The bureau provided recommendations at incident. the institution concerning these and other issues. BUREAU OF INDEPENDENT REVIEW PAGE 22 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA ADMINISTRATIVE INVESTIGATIONS It is the mission of the Bureau of Independent Review to ensure that the right results are reached for the right reasons in every California Department of Corrections and Rehabilitation internal affairs investigation. Toward that end, the Bureau of Independent Review uses a variety of methods, techniques, and frequency of consultation to monitor internal affairs investigations conducted by the department into allegations of criminal or administrative misconduct by department employees. Most internal affairs investigations involve allegations of administrative misconduct, which, if sustained, may result in corrective action or disciplinary action, depending on the severity of the misconduct. In the most severe disciplinary cases, the subject-employee may be terminated. The bureau is keenly aware of the serious consequences disciplinary action can have for the subject- employee, as well as the consequences to the department if misconduct is not promptly detected and adequately addressed. Therefore, the bureau seeks to ensure the timeliness, thoroughness, and fairness of every internal affairs investigation it monitors. To accomplish that goal, the bureau reviews every written request for investigation submitted to the Office of Internal Affairs to determine the most appropriate method, technique, and frequency of consultation for reviewing and monitoring the investigation. If the allegation involves serious employee misconduct, the bureau will usually initiate its highest level of review—real-time continuous review—for the duration of the investigation. Serious employee misconduct includes employee dishonesty, lack of integrity, abuse of authority, sexual misconduct, use of deadly force, use of significant force with injury, and serious allegations against supervisors. Most criminal misconduct is also considered serious employee misconduct. The bureau may also conduct real-time continuous review of high-profile cases at its discretion. All other misconduct is considered general employee misconduct. Real-time continuous review is the most rigorous type of monitoring conducted by the bureau. A bureau attorney conducting real-time continuous review remains in constant consultation with the investigator and attorney (vertical advocate) assigned to the matter by the California Department of Corrections and Rehabilitation to ensure among other things that the statute of limitations has been accurately calculated, that the investigative strategy developed is in compliance with all applicable statutory and constitutional obligations, and that measurable progress is made on the case. Upon completion of the investigation, the bureau attorney reviews the reports and the supporting evidence to assess the quality and adequacy of both. If the hiring authority proposes disciplining the subject-employee based on the evidence presented in the investigative report, the bureau attorney also consults with the hiring authority regarding the appropriateness of that action. Investigations into general employee misconduct are subject to less-frequent monitoring by the bureau, but no less rigorous review. In those cases, the bureau normally initiates its second- highest level of review—critical juncture review. As in the real-time continuous review described above, the staff-attorney consults with the investigator and attorney assigned to the BUREAU OF INDEPENDENT REVIEW PAGE 23 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA matter by the department, but the frequency of consultation is not continuous and instead depends on the number of critical events that occur during the investigation, such as scene visits, evidence collection, and subject interviews. Similarly, if disciplinary action is proposed as a result of the investigation, the staff-attorney consults with the hiring authority and offers his or her reasoned and independent assessment of the merits of the case. The following table summarizes the Office of Internal Affairs administrative cases monitored by the Bureau of Independent Review during the January through June 2005 reporting period. BUREAU OF INDEPENDENT REVIEW PAGE 24 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF ADMINISTRATIVE INVESTIGATIONS — JANUARY-JUNE 2005 SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES On September 19, 2003, a female inmate On the basis of the alleged that a correctional officer engaged in investigative report, the sexual relations with her during her previous hiring authority incarceration at the institution. The inmate sustained none of the further alleged that the subject-employee allegations against the deposited money in her inmate account and subject-employee. The gave her marijuana in exchange for sex. She Bureau of Independent alleged that she became pregnant with the Review concurred with subject-employee’s baby, but that the baby the hiring authority’s died while she was on parole. decision. No medical records supported the female inmate’s claim that she was pregnant at the time in question, nor did coroner records support her claim that a baby died in her care. Furthermore, institution records revealed that the subject-employee was not on duty on the days the female inmate allegedly engaged in sex with him. When confronted with the above evidence, the female inmate recanted all of her allegations.7 On December 15, 2003, a telephone The Bureau of Independent Review The subject-employee conversation between an off-duty reviewed the investigative reports. pled to misdemeanor correctional officer and her son, who at the possession of stolen time was incarcerated in the local county property and resigned jail, was overheard by a sheriff’s detective before the imposition of authorized to monitor such calls. During the disciplinary action. telephone call the correctional officer allegedly conspired with her son to hide 7 This incident is included here even though it did not take place within the January – June 2005 reporting period in order to help provide a complete summary of the initial activities of the Bureau of Independent Review. BUREAU OF INDEPENDENT REVIEW PAGE 25 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES stolen property. When confronted by local law enforcement, the correctional officer at first denied the charge, but ultimately confessed.8 Between January and September 2004, a The Bureau of Independent Review The subject-employee supervising cook with the California monitored the administrative resigned before the Department of Corrections allegedly investigation, as well as the parallel imposition of any engaged in overly familiar relations with criminal investigation. disciplinary action and more than one inmate.9 that fact was noted in her employment file. On June 13, 2004, an off-duty correctional The Bureau of Independent Review The hiring authority officer was arrested for willful discharge of monitored the investigation. imposed termination on a firearm and assault with great bodily the subject-employee. injury. The incident occurred while the The bureau concurred in subject-employee was attending a party. A the hiring authority’s fracas erupted among the guests, and decision. witnesses allege that the subject-employee pulled out a handgun and fired three rounds overhead. Witnesses also allege that the subject-employee, without provocation, kicked another partygoer in the head and chest repeatedly, after which the victim lost consciousness and was transported to a nearby medical center. The victim received treatment for a split eyelid, lacerations, and bruising.10 On June 26, 2004, an off-duty correctional The subject-employee officer was arrested for vandalism and resigned before the felony grand theft.11 imposition of 8 Ibid. 9 Ibid. 10 Ibid. 11 Ibid. BUREAU OF INDEPENDENT REVIEW PAGE 26 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES disciplinary action, and that fact was noted in his employment file. On July 15, 2004, a correctional officer was The Bureau of Independent Review At one point during the investigation the As a result of the arrested for spousal abuse, assault with monitored the administrative bureau intervened to ensure that it would subject-employee’s intent to commit great bodily injury, and investigation, as well as the parallel be completed in a timely fashion. Skelly hearing, the felony mayhem. The subject-employee criminal investigation. proposed disciplinary allegedly broke through his estranged wife’s action was reduced to a apartment door to confront her and her 5 percent reduction in boyfriend. A fight broke out between the pay for six months. The subject-employee and the boyfriend, bureau concurred in the resulting in injuries to the boyfriend.12 reduction on the basis of the quality of testimony by the victims in the parallel criminal case. It was discovered in October 2004, that for The Bureau of Independent Review The bureau found the several months in 2004, a correctional monitored the investigation. investigation to be officer allegedly engaged in overly familiar thorough and prompt. relations with multiple parties, including The subject-employee inmates, parolees, and inmate/parolee resigned before the family members.13 imposition of any disciplinary action, and that fact was noted in her employment file. On October 10, 2004, a correctional officer The Bureau of Independent Review The subject-employee was arrested for misdemeanor driving under monitored the investigation. resigned before the the influence and felony possession of imposition of methamphetamine.14 disciplinary action, and that fact was noted in 12 Ibid. 13 Ibid. 14 Ibid. BUREAU OF INDEPENDENT REVIEW PAGE 27 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES his employment file. On or about October 14, 2004, a The Bureau of Independent Review The subject-employee correctional officer allegedly engaged in monitored the administrative resigned before the sexual misconduct with an inmate and investigation, as well as the parallel imposition of smuggled narcotics into the institution.15 criminal investigation. disciplinary action, and that fact was noted in her employment file. On December 17, 2004, an off-duty The Bureau of Independent Review The bureau recommended that the The hiring authority correctional lieutenant was arrested for monitored the administrative subject-employee be dismissed from his demoted the subject- spousal abuse, mayhem, and felony assault investigation. position as a peace officer in light of the employee to a non- with force likely to cause great bodily fact that individuals convicted of spousal sworn position. The injury.16 abuse are prohibited from possessing a bureau concurred with gun under state and federal law. the hiring authority’s decision. In January 2005, it was discovered that a The Bureau of Independent Review The subject-employee correctional case supervisor had allegedly monitored the investigation. resigned before the married an inmate by telephone on August imposition of 27, 2003 and had lied in order to have him disciplinary action, and paroled to her residence when he was that fact was noted in released in 2005. her employment file. On January 12, 2005, a supervisor allegedly The Bureau of Independent Review The subject-employee married an inmate. monitored the investigation. resigned before the imposition of disciplinary action, and that fact was noted in her employment file. On February 25, 2005, a correctional officer The Bureau of Independent Review Although the subject-employee’s The subject-employee confessed during sworn testimony at a monitored the investigation. admissions did not result in criminal accepted a demotion to family court hearing that he was using charges, the Bureau of Independent a non-sworn staff illegal narcotics, including cocaine and Review monitored the administrative position and is subject methamphetamine. The subject-employee investigation to ensure that his drug to random drug testing. 15 Ibid. 16 Ibid. BUREAU OF INDEPENDENT REVIEW PAGE 28 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES further admitted that he would fail a drug problem would be addressed and The bureau concurred test if one were given. institution safety would not be with the demotion. compromised. A March 14, 2005 report authored by a The Bureau of Independent Review The subject-employee medical review officer alleged that a monitored the investigation. resigned before the correctional sergeant tested positive for imposition of any amphetamines and methamphetamines. disciplinary action, and that fact was noted in his employment file On April 11, 2005, a correctional officer The Bureau of Independent Review The subject-employee allegedly engaged in sexual misconduct monitored the administrative resigned before the with an inmate. It was also alleged that the investigation, as well as the parallel imposition of any officer had smuggled narcotics into the criminal investigation. disciplinary action, and institution. that fact was noted in her employment file. BUREAU OF INDEPENDENT REVIEW PAGE 29 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA CRIMINAL INVESTIGATIONS As discussed in the previous section, the Bureau of Independent Review uses a variety of methods, techniques, and frequency of consultation to monitor internal affairs investigations conducted by the California Department of Corrections and Rehabilitation. Although the number of internal affairs investigations involving allegations of criminal misconduct is far less than the number involving alleged administrative misconduct, there is no greater detriment to institution security in the long term than when criminal allegations against department employees are found to be true. Therefore, it is the bureau’s policy that internal affairs investigations into alleged criminal misconduct receive the most rigorous monitoring — that is, real-time continuous review. Moreover, criminal investigations must comply with numerous state and federal legal procedures upon which the bureau’s attorneys are ideally suited to comment, given their extensive legal training. In light of the serious nature of these criminal investigations, the potential loss of liberty to the subject-employee if the allegations are sustained, and the department’s legal responsibility to detect, investigate, and refer all criminal misconduct to local prosecutors, the bureau seeks to ensure through its monitoring activity that every internal affairs investigation involving alleged criminal misconduct is timely, thorough, and fair. To accomplish this purpose, the bureau consults not only with the department’s own investigators, but also with local prosecutors in numerous district attorneys’ offices throughout the state, as well as other local law enforcement officials, such as sheriff and police departments. Among other things, the bureau strives to improve the department’s crime scene preservation, evidence collection, and emergency response procedures by maintaining regular communication with local law enforcement agencies in the given community. In addition, the bureau has engaged in extensive training on criminal procedure issues with institution and internal affairs staff. It is the bureau’s hope that as a result, every internal affairs investigation involving alleged criminal misconduct will be performed in a highly professional manner, consistent with all applicable state and federal laws and suitable for prosecution if the facts warrant such action. In short, it is the bureau’s mission to ensure the truth is learned and justice is achieved in every criminal case. The following table summarizes the Office of Internal Affairs criminal cases monitored by the Bureau of Independent Review during the January through June 2005 reporting period. BUREAU OF INDEPENDENT REVIEW PAGE 30 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF CRIMINAL INVESTIGATIONS — JANUARY-JUNE 2005 SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES On August 26, 2002, a recently paroled The Bureau of Independent Review The bureau concurred inmate alleged that another inmate monitored the administrative that there was incarcerated for a parole violation had investigation. insufficient evidence to repeatedly solicited the murder of his parole sustain a criminal agent. The Law Enforcement and charge against the Investigations Unit assigned an investigator investigator. to assess the threat to the parole agent. When the investigator testified before the Board of Prison Terms regarding his investigation, the incarcerated inmate was denied parole. On June 24, 2004, the incarcerated inmate accused the investigator of committing perjury during the board hearing.17 On December 5, 2003 a control booth The Office of Internal officer allowed two cellmates out of their Affairs requested an cell to talk with him. That action violated extension of time to institution security protocols, which complete this required the presence of a floor officer. investigation because of When the two inmates became disruptive the multitude of and refused to return to their cell, the subjects involved. The administrative officer-of-the-day approved a district attorney’s office plan proposed by the facility lieutenant to did not file charges in extract the inmates with a team of officers the case. armed with 37mm launchers and sponge rounds. A fight broke out during the extraction and numerous sponge rounds 17 This case is included here even though it did not take place within the January – June 2005 reporting period because the monitoring activity of the Bureau of Independent Review did take place within that time period and this is the bureau’s first opportunity to report on it. BUREAU OF INDEPENDENT REVIEW PAGE 31 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES were fired from the launcher. Eventually, one inmate surrendered and officers subdued the other inmate, placing him face down on the ground. The facility lieutenant then ordered a “cease fire,” but two correctional officers fired additional sponge rounds, at least one of which struck the subdued inmate. The injuries to the inmate included two broken fingers and a laceration to the neck/back area.18 On December 15, 2003, a telephone The Bureau of Independent Review The district attorney’s office gave the The subject-employee conversation between an off-duty reviewed the investigative reports and matter renewed attention and pled to misdemeanor correctional officer and her son, who at the concluded that there was sufficient subsequently filed a felony charge against possession of stolen time was incarcerated in the local county evidence to prosecute. the correctional officer for conspiracy to property and resigned jail, was overheard by a sheriff’s detective possess stolen property. before the imposition of authorized to monitor such calls. During the The Office of Internal Affairs referred the disciplinary action. telephone call the correctional officer case to local prosecutors for criminal allegedly conspired with her son to hide charges, but the district attorney’s office stolen property. When confronted by local initially rejected the case, citing a lack of law enforcement, the correctional officer at sufficient evidence. first denied the charge, but ultimately confessed.19 The bureau then met with the district attorney’s office and requested reconsideration of the charges. Between January and September 2004, a The Bureau of Independent Review The subject-employee supervising cook with the California monitored the criminal investigation, as pled guilty to one Department of Corrections allegedly well as the parallel administrative misdemeanor count of engaged in overly familiar relations with investigation. unauthorized more than one inmate.20 communication with an inmate. 18 Ibid. 19 Ibid. 20 Ibid. BUREAU OF INDEPENDENT REVIEW PAGE 32 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES On May 12, 2004, two correctional officers The Bureau of Independent Review The district attorney’s failed to properly secure the cell doors of obtained for review a copy of the office elected not to file rival inmates, permitting them to exit and investigative report, which was not criminal charges against fight with one another. The officers took completed until January, 2005. the two officers, citing a immediate action to stop the fight and lack of sufficient secured the inmates without significant evidence to prove injuries to either. The internal affairs criminal intent on the investigation found that a mechanical part of either officer in malfunction in the cell door locking devices the incident. occurred at the time of the incident, but faulted the officers for not properly following institution security protocols for such situations. It was also learned that one of the correctional officers involved was administratively reprimanded for a similar incident in March and again in August of 2003.21 On June 13, 2004, an off-duty correctional The Bureau of Independent Review The subject-employee officer was arrested for willful discharge of monitored the criminal investigation. pled guilty to a firearm and assault with great bodily misdemeanor discharge injury. The incident occurred while the of a firearm and was subject-employee was attending a party. A granted probation. As a fracas erupted among the guests and result of his conviction, witnesses allege that the subject-employee the subject-employee pulled out a handgun and fired three rounds may not possess a overhead. Witnesses also allege that, firearm pursuant to state without provocation, he kicked another and federal law. partygoer in the head and chest repeatedly, after which the victim lost consciousness and was transported to a nearby medical center. The victim received treatment for a split eyelid, lacerations, and bruising.22 On June 23, 2004, an employee overheard The district attorney’s 21 Ibid. 22 Ibid. BUREAU OF INDEPENDENT REVIEW PAGE 33 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES inmates discussing another female inmate office filed two criminal who had allegedly engaged in sexual acts counts against the with a correctional officer in exchange for subject-employee for contraband, including tobacco and cigarette engaging in a sexual act lighters. When confronted with the with an inmate. The information, the female inmate in question subject-employee pled alleged that she and the subject-employee guilty to one count and had engaged in oral copulation, digital resigned before the penetration, and intercourse. She further imposition of claimed that the subject-employee gave her disciplinary action. tobacco and cigarette lighters.23 On July 6, 2004, a parole agent allegedly The Bureau of Independent Review met The district attorney’s office gave the This case is pending the logged onto one of the office computers and with the district attorney’s office and the matter renewed attention and empanelment of a jury accessed the criminal history of a parolee Office of Internal Affairs. subsequently filed a misdemeanor charge for trial. assigned to another parole agent for against the parole agent for furnishing purposes of delivering a copy of the confidential information to an criminal history to a friend. The friend then unauthorized person. used the criminal history information in family court during a child custody hearing involving the parolee. The Office of Internal Affairs referred the case to local prosecutors for criminal charges, but the district attorney’s office initially rejected the case.24 On October 10, 2004, a correctional officer The Bureau of Independent Review The investigation led to was arrested for misdemeanor driving under monitored the criminal investigation. the subject-employee the influence and felony possession of pleading guilty to both methamphetamine.25 criminal charges. On January 13, 2005, an institution The district attorney’s instructor allegedly submitted a falsified office filed charges of travel expense claim concerning an off-site forgery and petty theft. 23 Ibid. 24 Ibid. 25 Ibid. BUREAU OF INDEPENDENT REVIEW PAGE 34 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES training event. The subject-employee requested reimbursement for the use of his personal vehicle to and from the training event, but the institution discovered that the subject-employee had received a ride from a co-worker. On January 18, 2005, a correctional officer The Bureau of Independent Review The bureau met with investigators from The bureau concluded was found among several inmates in the monitored the criminal investigation. the Office of Internal Affairs and the that the work of the institution barbershop along with five bags institution’s investigative services unit, as investigative services of tobacco and a cell phone. The subject- well as the warden, to discuss the legal unit in this incident was employee was eventually detained. The issues presented in the case. Specifically commendable given the subject-employee indicated he did not have discussed was the inappropriateness of lack of guidance a car on the premises, and after a car agreeing to withhold referral of criminal provided by the Legal thought to be his was located in the parking matters to the local district attorney’s Affairs Division. The lot, the subject-employee denied it was his. office, the need to complete an institution erred, A key in the possession of the subject- administrative investigation regardless of however, by not employee unlocked the car door, however. the subject-employee’s resignation in referring the matter to order to ensure that the allegations were the district attorney’s sustained in the event he applies at office. The bureau The investigative services unit at the another institution, and the lack of recommends that the institution made numerous calls to the Legal sufficient guidance from the Legal Affairs California Department Affairs Division of the California Division concerning the proper search of Corrections and Department of Corrections and and seizure procedures to be followed in a Rehabilitation make Rehabilitation in an attempt to determine if given circumstance. clear in its operations manual and future there was legal authority to search the training curriculum that vehicle, but to no avail. The unit then peace officers are proceeded to search the car on the basis of a obligated to refer all sign at the entrance to the facility indicating sustained acts of all cars are subject to search. Although the criminal misconduct to search of the car was initiated without the the district attorney’s consent of the subject-employee, it did office. The bureau also occur in his presence and in the presence of recommends that the his union attorney. As a result of the search department remedy the numerous items that corroborated the responsiveness of the smuggling allegation were found in his car. Legal Affairs Division BUREAU OF INDEPENDENT REVIEW PAGE 35 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SUMMARY OF INCIDENT BUREAU ACTION BUREAU IMPACT CONCLUSIONS & NOTES The subject-employee offered to resign on and pursue legislation the spot in exchange for a commitment by criminalizing the the hiring authority that the matter would possession of tobacco not be referred to the district attorney’s and cell phones by office. The warden accepted. inmates. On March 2, 2005, a correctional officer The Bureau of Independent Review The district attorney’s was arrested for spousal abuse, assault with monitored the criminal investigation, as office filed criminal intent to commit great bodily injury, and well as the parallel administrative charges and the case is felony mayhem. The subject-employee investigation, and at one point intervened currently pending allegedly broke through his estranged wife’s to ensure that the investigation would be empanelment of a jury apartment door to confront her and her completed in a timely fashion. for trial. boyfriend. A fight broke out between the subject-employee and the boyfriend, resulting in injuries to the boyfriend. On April 11, 2005, a correctional officer The Bureau of Independent Review The criminal case allegedly engaged in sexual misconduct monitored the criminal investigation, as resulted in a guilty plea with an inmate. It was also alleged that the well as the parallel administrative by the subject-employee correctional officer had smuggled narcotics investigation. to one misdemeanor into the institution. count of unauthorized communication with an inmate. BUREAU OF INDEPENDENT REVIEW PAGE 36 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA SPECIAL REVIEWS The Bureau of Independent Review participated in two special reviews during the January 2005 through June 2005 reporting period. The reviews are summarized below. The full text of the special reviews can be viewed on the Office of the Inspector General’s website at www.oig.ca.gov. • Special Review into the Death of Correctional Officer Manuel Gonzalez, Jr. In March 2005, the Bureau of Independent Review participated in a special review by the Office of the Inspector General into the circumstances surrounding the death of Correctional Manuel Gonzalez, Jr. who was fatally stabbed by an inmate at the California Institution for Men on January 10, 2005. A criminal investigation into the incident by the San Bernardino County Sheriff’s Department resulted in murder charges against the inmate. The purpose of the special review was to identify systemic procedural and policy deficiencies, procedural violations, and other factors that may have contributed to the incident. Four of the ten findings resulting from the review were prepared by the Bureau of Independent Review. Specifically, the bureau found the following: o The medical clinic at the California Institution for Men’s reception center, where the victim was taken after the stabbing, was poorly equipped and ill-prepared to handle the emergency. o The institution management did not set up an emergency operations center or initiate an emergency operations plan in the wake of the stabbing due to ambiguous protocols. As a result, there was confusion in the chain of command, emergency operations policies were not implemented, the crime scene was destroyed, and an incident log was never initiated. o The California Institution for Men did not implement important emergency procedures in the response to the incident, which led to contamination of the crime scene and loss of important evidence. o The inmate accused in the incident was allowed to conduct a telephone conference with an attorney before he was indicted for the murder even though the attorney’s request for the conference was not properly submitted in writing. The Office of the Inspector General presented 19 specific recommendations to address the bureau’s findings. The Bureau of Independent Review continues to monitor and report on the implementation of the corrective action plan prepared by the California Department of Corrections and Rehabilitation in response to the special review. BUREAU OF INDEPENDENT REVIEW PAGE 37 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA • Special Review into the Death of Inmate Daniel Provencio In June 2005, the Bureau of Independent Review conducted a special review into the circumstances surrounding the death of inmate Daniel Provencio at Wasco State Prison. Provencio was struck in the head by a direct-impact sponge projectile fired by a correctional officer from a 40mm launcher on January 16, 2005 after a fight broke out among inmates during an evening meal. Provencio lapsed into a coma and died on March 4, 2005. The Office of Internal Affairs of the California Department of Corrections conducted a criminal investigation into the incident and found no criminal misconduct by Wasco employees. The department’s Law Enforcement and Investigations Unit conducted a use- of-force investigation into the incident and subsequently determined that the actions of the correctional officer who fired the direct-impact round were within department policy. The findings of the Law Enforcement and Investigations Unit were also presented to an independent Deadly Force Review Board, comprised of executive-level law enforcement officers from outside the department. The members of the Deadly Force Review Board determined that the officer’s shooting of Provencio was reasonable under the circumstances and was in compliance with the department’s policy governing the use of less-than-lethal direct-impact weapons. Warden P. L. Vazquez of Wasco State Prison also convened an “Institution-Head Review of Use-of-Force Critique and Qualitative Evaluation Analysis” Committee, which reviewed the matter and concluded there had been no employee misconduct during the incident. The Bureau of Independent Review became involved immediately following the incident to ensure the timeliness, thoroughness, and objectivity of the investigations by the various entities and to identify any systemic policy or training deficiencies, procedural violations, or other factors that may have contributed to Provencio’s death. As a result of its review, the bureau determined that the investigations conducted of the incident were timely, thorough, and objective and that the conclusions reached by the investigative entities — that the actions of the officer did not involve criminal misconduct, that he acted in a reasonable manner, and that he complied with department policy in firing the 40mm direct-impact projectile — were supported by the weight of the evidence. Although the bureau concurred with the findings described above, the special review revealed the following issues of concern: o Inadequate training on the 40mm direct-impact launcher and lack of a consistent policy at the prison for qualification on the weapon may have contributed to the officer’s inaccurate placement of the projectile. o Wasco State Prison staff may not have regularly performed thorough security checks of the housing unit during shift changes; failed to conduct timely cell BUREAU OF INDEPENDENT REVIEW PAGE 38 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA searches of the housing unit after the incident; and failed to properly maintain the housing unit logbooks. o Emergency notification procedures for use-of-force incidents at Wasco State Prison were deficient. o Members of the Wasco State Prison staff improperly handled some of the evidence in the case, but that deficiency did not affect the investigation. o None of the Department of Corrections entities investigating the incident was required to conduct an administrative investigation beyond the use-of-force review to determine whether corrective or disciplinary action of staff was appropriate. The Bureau of Independent Review voluntarily took on that task. The Bureau of Independent Review issued six specific recommendations to address the findings. In response, the California Department of Corrections and Rehabilitation provided a corrective action plan designed to address the recommendations. The corrective action plan is now under review by the bureau. BUREAU OF INDEPENDENT REVIEW PAGE 39 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA APPENDIX A: THE MADRID LITIGATION Madrid v. Gomez, 889 F.Supp. 1146 (N.D. 1990) The Madrid case resulted from a federal civil rights lawsuit filed by a group of inmates incarcerated at Pelican Bay State Prison in northwestern California. The inmates alleged that the State, the Department of Corrections, and several of its employees violated the First, Eighth, and Fourteenth amendments by (1) condoning a pattern and practice of using excessive force against inmates, (2) failing to provide inmates with adequate medical care, (3) failing to provide inmates with adequate mental health care, (4) imposing inhumane conditions in the security housing unit, (5) using cell-assignment procedures that exposed inmates to an unreasonable risk of assault from other inmates, (6) failing to provide adequate procedural safeguards when segregating prison gang affiliates in the security housing unit, and (7) failing to provide inmates with adequate access to the courts.26 A court trial held in late 1993 before the Honorable Thelton E. Henderson, U. S. District Court, Northern District of California included testimony from 57 lay witnesses, numerous expert witnesses, and the presentation of more than 6,000 exhibits. As to the inmates’ claim that the defendants condoned a pattern and practice of using excessive force against inmates, the court recognized that the use of force must be carefully regulated and controlled in order to prevent abuses against inmates, as well as to ensure the overall safety and security of the prison.27 The court noted: “Thus, adequate written policies provide the necessary framework for properly training staff and evaluating subsequent conduct. Yet, written policies alone serve little purpose unless staff is trained as to their content. Adequate supervision and investigation are necessary to ensure that, in practice, the staff is properly implementing written policies and principles learned through training. Finally, a meaningful disciplinary system is essential, for if there are no sanctions imposed for misconduct, the prison’s ‘policies and procedures’ become a dead letter.”28 After a thorough review and consideration of the testimonial and documentary evidence, the court concluded that the Eighth Amendment's restraint on using excessive force had been repeatedly violated at Pelican Bay State Prison, creating a conspicuous pattern of excessive force.29 In many of the incidents testified to, the court found there was no justification for the use of force, or alternately, the use of force was appropriate, but the amount of force applied was strikingly disproportionate to the circumstances for which it was imposed. The court observed that it was more likely than not that force was used “for the very purpose of causing harm, rather than in a good faith effort to restore or maintain order.”30 The court also determined that despite a facially complex system for reviewing the use of force, the Department of Corrections demonstrated a lax attitude towards that review in both non-lethal and lethal force incidents, noting: “Indeed, meaningful firearm supervision of the kind that actually protects human beings is almost non-existent.”31 26 Madrid v. Gomez, 889 F. Supp. 1146, 1156 (N.D. Cal. 1995). 27 Ibid. at 1181. 28 Ibid. 29 Ibid. at 1161. 30 Ibid. 31 Ibid., at 1191. BUREAU OF INDEPENDENT REVIEW PAGE 40 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA The court also found that investigations conducted at the time by internal affairs personnel were “counterfeit investigation[s] pursued with one outcome in mind: to avoid finding officer misconduct as often as possible. [N]ot only are all presumptions in favor of the officer, but evidence is routinely strained, twisted or ignored to reach the desired result. The consequence is to reinforce an already clear message to line staff that unnecessary and excessive force will be tolerated, if not actively encouraged.”32 “Given the lapses in supervision, and the unlikelihood that the IAD will find a misuse of force in any given case, officers rarely face the prospect of discipline for using excessive force against inmates.”33 Further aggravating the discipline arena, the court found, was evidence of a “code of silence” within the department. Designed to encourage prison employees to remain silent about the improper behavior of their fellow employees (particularly where excessive force has been alleged), the court noted that those who defied the code risked retaliation and harassment at the hands of their fellow employees.34 The court concluded that the defendants failed to provide: (1) clear and authoritative use-of-force policies; (2) any meaningful supervision of the use of force; (3) a bona fide investigatory process into allegations of misuse of force; and (4) consistent imposition of discipline in those cases in which misuse of force was found. “While a failure in one area might not raise any particular inference,” the court said, “the glaring deficiency in all of the above areas convinces us that such deficiencies are not accidental but the result of deliberate indifference. We agree that the extent to which force is misused at Pelican Bay, combined with the flagrant and pervasive failures in defendants' systems for controlling the use of force reveal more than just deliberate indifference: they reveal an affirmative management strategy to permit the use of excessive force for the purposes of punishment and deterrence.”35 The court held that the defendants “permitted and condoned a pattern of using excessive force, all in conscious disregard of the serious harm that these practices inflict,” in violation of the Eighth Amendment.36 Concluding that injunctive relief was both necessary and appropriate to ensure an effective remedy of the constitutional violations at issue, the court appointed a special master experienced in prison administration to fashion an appropriate remedy and to monitor the implementation of that remedy.37 Madrid v. Woodford, 60 Fed. R. Serv. 3d 56 (N.D. Cal. 2004) During his continued monitoring of the Department of Corrections, Special Master John Hagar discovered in July 2003 that the department had failed to conduct investigations of three correctional officers who had perjured themselves during the criminal trial of two other correctional officers. Hagar further discovered that the department had failed to follow a remedial plan (known as the “Post Powers Plan”), which had been specifically created to govern 32 Ibid.at 1192. 33 Ibid. at 1196. 34 Ibid. at 1156. 35 Ibid. at 1199. 36 Ibid., at 1279-80. 37 Ibid., at 1282-83. BUREAU OF INDEPENDENT REVIEW PAGE 41 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA the internal investigations and discipline of employees who engaged in misconduct resulting from the criminal case.38 The court directed Special Master Hagar to fully investigate the matter. During his extensive inquiry, the special master determined that the three perjury investigations were delayed for months, were grossly understaffed, and were not completed within the one-year statute of limitations.39 The special master further learned that the Office of Internal Affairs investigative agent and the Employment Law Unit attorney assigned to the cases were never told about the “Post Powers Plan” by their superiors at the Department of Corrections.40 The special master also determined that the then-director of the Department of Corrections had ordered the three investigations “shut down” after it was disclosed to the California Correctional Peace Officers Association that one of the cases was being referred for criminal prosecution.41 Finally, the special master discovered that at the meeting where the decision to close the three perjury investigations was made, it was also decided that the special master would be notified of the closures via a “fact finder” letter. The special master concluded that this letter, authored by the deputy director of the Office of Investigative Services, was sent to deceive the court by claiming the allegations lacked sufficient merit to warrant further investigation, when in fact, the “fact finding” emphasized only the weaknesses of the case without mentioning its strengths.42 The special master made several recommendations to the court to remedy the systemic deficiencies in the Department of Corrections’ investigation and disciplinary processes. Among these was the creation of the Bureau of Independent Review within the Office of the Inspector General to perform real-time evaluations of abuse-of-force and employee ethics-related internal affairs cases.43 The court agreed. “In short, the Special Master’s Report, in vivid and damning detail, documents that the CDC’s system for investigating and disciplining officers is broken to the core. Not only is the system dysfunctional from a managerial standpoint, but it is also subject to interference and obstruction from the CCPOA.”44 “As this Court explained in its decision after trial, the ability to effectively investigate and discipline officers charged with abusing force (or interfering with abuse of force investigations) is essential to correcting the underlying constitutional violations found in this case, and thus to the final resolution of this long-standing litigation. Effective investigation and discipline is the final cornerstone of defendants' use of force remedial plans since without effective investigation and discipline, all of the remedial policies, no matter how well conceived, and would eventually turn into little more than a “dead letter.”45 The court noted that since the issuance of the special master’s report, the Department of Corrections had made significant progress in addressing the systemic issues related to the disciplinary process. These steps included the development of a disciplinary matrix, the creation 38 Madrid v. Woodford, 2004 WL 2623924, at 1, 60 Fed. R. Serv. 3d 56 (N.D. Cal. 2004). 39 Ibid. 40 Ibid. 41 Madrid, 2004 WL 2623924, at 2. 42 Ibid. 43 Ibid. at 9. 44 Ibid. 45 Ibid., at 8. BUREAU OF INDEPENDENT REVIEW PAGE 42 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA of a vertical advocacy model, and a policy of zero tolerance with respect to the code of silence.46 The court concurred with the special master that civil contempt proceedings were unnecessary at that time to secure compliance with the court's orders. Instead, the court adopted the special master’s recommendations to work with the department toward the development and implementation of an adequate remedial plan to address the problems with investigations, adverse action discipline, and the code of silence. Among these recommendations was the creation of the Bureau of Independent Review, which the court noted “will provide critically needed, systematic “real-time” monitoring of the investigative and discipline process in cases where there are charges of significant misuse of force.”47 46 Ibid. 47 Ibid. at 9. BUREAU OF INDEPENDENT REVIEW PAGE 43 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA APPENDIX B: SENATE BILL No. 1400 (2004) An act to add Section 6133 to the Penal Code, relating to corrections. [APPROVED BY GOVERNOR SEPTEMBER 24, 2004. FILED WITH SECRETARY OF STATE SEPTEMBER 24, 2004.] LEGISLATIVE COUNSEL’S DIGEST SB 1400, Romero. Corrections: Internal Affairs. Existing law provides for the administration of a system of state prisons under the Department of Corrections within the Youth and Adult Correctional Agency. Existing law establishes the office of the Inspector General, who is responsible for reviewing departmental policy and procedures for conducting audits of investigatory practices and other audits, as well as conducting investigations of the Department of Corrections and related state offices, as specified. Existing statutory and case law provides for some of the procedures by which public employees may be disciplined. Existing law limits the release of certain types of information relating to public employment, including special provisions that protect against the release of information concerning complaints against peace officers, including correctional officers in state prisons. This bill would establish the Bureau of Independent Review within the Office of the Inspector General to provide public oversight of investigations conducted by the Department of Corrections and the Department of the Youth Authority, and to issue reports, as specified, to the Governor and the Legislature. The people of the State of California do enact as follows: SECTION 1. Section 6133 is added to the Penal Code, to read: (a) There is created within the Office of the Inspector General a Bureau of Independent Review (BIR), which shall be subject to the direction of the Inspector General. (b) The BIR shall be responsible for contemporaneous public oversight of the Youth and Adult Correctional Agency investigations conducted by the Department of Corrections’ Office of Investigative Services and by Internal Affairs for the Department of the Youth Authority. The BIR shall also be responsible for advising the public regarding the adequacy of each investigation, and whether discipline of the subject of the investigation is warranted. The BIR shall have discretion to provide public oversight of other Youth and Adult Correctional Agency personnel investigations as needed. (c) (1) The BIR shall issue regular reports, no less than annually, to the Governor and the Legislature summarizing its recommendations concerning its oversight of Youth and BUREAU OF INDEPENDENT REVIEW PAGE 44 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA Adult Correctional Agency allegations of internal misconduct and use of force. The BIR shall also issue regular reports, no less than semiannually, summarizing its oversight of Office of Investigative Services and Internal Affairs investigations pursuant to subdivision (b). The reports shall include, but not be limited to, the following: (A) Data on the number, type and disposition of complaints made against correctional officers and staff. (B) A synopsis of each matter reviewed by the BIR. (C) An assessment of the quality of the investigation, the appropriateness of any disciplinary charges, the BIR’s recommendations regarding the disposition in the case and when founded, the level of discipline afforded, and the degree to which the agency’s authorities agreed with the BIR recommendations regarding disposition and level of discipline. (D) The report of any settlement and whether the BIR concurred with the settlement. (E) The extent to which any discipline was modified after imposition. (2) The reports shall be in a form which does not identify the agency employees involved in the alleged misconduct. (3) The reports shall be posted on the Inspector General’s Web site and otherwise made available to the public upon their release to the Governor and Legislature. BUREAU OF INDEPENDENT REVIEW PAGE 45 OFFICE OF THE INSPECTOR GENERAL STATE OF CALIFORNIA