OIG Sentinel Case No. 20-01

Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer Chief Deputy INSPECTOR GENERAL Inspector General Independent Prison Oversight OIG NO. 20–01 SeNtINel CaSe JaNuary 10, 2020 The Office of the manufactured weapons, to hide the weapons, and Inspector General also to secrete drugs. The Investigative Services (OIG) is responsible Unit found stabbing weapons the inmates crafted for, among other things, using metal they stripped from furniture and acrylic monitoring the California sheets of plexiglass typically used on holding cells. Department of Corrections Furthermore, the Investigative Services Unit also and Rehabilitation’s (the found a can of red spray paint in the plumbing chase. department) internal Prison staff typically apply red spray paint to identify investigations and employee property with missing material, such as a piece of disciplinary process. furniture or equipment. In order to conceal the Pursuant to California material taken to make weapons, the inmates used Penal Code section 6133, the the paint to mirror how prison staff applied red spray OIG reports semiannually Cache of recovered weapons paint to identify property with missing material. on its monitoring of these Multiple inmates also cases. However, in some cases, where there are compelling reasons, independently offered the OIG may issue a separate public report regarding a case; we call additional specific these Sentinel Cases. When this happens, the OIG has determined that details and confirmed the department’s handling of a case was unusually poor, involving to investigators serious errors, even after it has had a chance to repair the damage. This that inmates who Sentinel Case, No. 20–01, involves department attorneys who failed so were members of fundamentally in their representation of the department that substantial the crew assaulted justice was not done. inmates convicted Cage marked with contraband From January through August 2017, ten officers at a prison in central of sex offenses; the spray paint California allegedly engaged in a conspiracy to open cell doors in a inmate crew used particular housing unit to allow a select group of inmates — called a stabbing weapons to assault the inmates convicted of crew — to enter cells and assault inmates convicted of sex offenses. The sex offenses; the inmate crew made weapons using officers’ misconduct was allegedly prevalent and widespread in the metal stripped from furniture and acrylic sheets; the housing unit. This crew consisted of inmate porters, who are inmates inmate crew hid the weapons in a locked plumbing selected by staff to assist with cleaning and other duties in a prison. chase; and housing unit officers delayed responding A member of this inmate crew came forward to report the officers’ to the Investigative Services Unit when its personnel misconduct because he was afraid that other inmates would attack him, requested access to the housing unit in order to and he knew there was a variety of weapons in the housing unit. conduct searches. The department launched an investigation. The reporting inmate The investigators’ discovery of five weapons and provided specific information, including identifying where the inmate weapon stock in the exact location described by crew had hidden weapons and other materials. After the reporting the inmates corroborated the statements of these inmate provided the information, the prison’s Investigative Services inmates. The inmates also provided accurate Unit found weapons and other materials in a locked plumbing chase, descriptions concerning the manner in which which is a cavity behind a wall used to conceal plumbing piping. This is the officers attempted to delay the entry of the significant because not only did the discovery of weapons corroborate Investigative Services Unit into the housing unit, the reporting inmate’s information and credibility, it also called into allowing the inmates time and opportunity to hide question the role of the officers as the plumbing chase is their contraband weapons and drugs. Interestingly, locked and not accessible by inmates unless staff provide departmental investigators also interviewed a number access to the inmates. of officers, and not one stated that he or she was aware of any misconduct. The evidence for this case Other inmates independently corroborated the came solely from information provided by inmates reporting inmate’s information. According and subsequent corroboration of that information. to four inmates whom departmental investigators interviewed, officers As a result of the department’s internal investigation commonly allowed members of the as to the ten officers, on June 10, 2019, the warden inmate crew access to restricted areas decided to dismiss six officers and decided to not Inmate- manufactured in the housing unit so that these inmates sustain misconduct allegations against four officers. weapon could obtain materials to make inmate- The OIG agreed with the warden’s decisions to Continued on reverse. 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov Roy W. Wesley Inspector General OIG OFFICE of the Bryan B. Beyer INSPECTOR GENERAL Inspe C c h to ie r f G D e e n p e u r t a y l Independent Prison Oversight OIG NO. 20–01 SeNtINel CaSe JaNuary 10, 2020 dismiss the six officers based on the credible evidence To support their position, the department attorney and his supervisor and corroboration provided by the inmates. The cited prior decisions from the State Personnel Board that were not OIG also agreed with the warden’s decisions to not precedential which indicated that inmate testimony is to be viewed with sustain allegations as to suspicion and to not ordinarily be credited without corroboration. In one four officers because the of the cases cited, the judge noted an inmate’s prior convictions, but also evidence did not support that the inmate had a history of filing unfounded grievances against staff, a finding of misconduct as lied to investigators, and had previously suffered serious rules violations. to those officers. In the other case offered by the department attorneys, the judge noted that uncorroborated inmate testimony must be viewed with suspicion, As to the six officers but also noted other reasons for not believing an inmate based on other the hiring authority statements he made and circumstantial evidence. decided to dismiss, Can of recovered red spray paint the department had Moreover, although the support provided by the department attorney previously terminated is not established case law, even utilizing such a standard, as noted two of the four officers on unrelated cases; one of above, that corroboration was present in this case. Furthermore, the the officers resigned from the department pursuant department attorneys’ logic was internally inconsistent in that they to an unrelated case; and one of the officers resigned agreed the evidence provided by the inmates and subsequently before being dismissed pursuant to the instant case. corroborated could be used to sustain the allegations against Thus, there remained two officers who were facing four officers, but not the two remaining officers. Therefore, dismissals as decided upon by the warden. the department attorneys’ advice — from two of the most senior attorneys who represent the department in The department attorney assigned to this case employee discipline cases before the State Personnel agreed with the warden’s decisions to not sustain Board — violated their obligation to provide the allegations against four officers and to sustain accurate legal advice to their client. the allegations against the four officers who were previously terminated or resigned from the The OIG supported the warden’s decision department, but objected to the warden’s decision to dismiss the officers and expressed to sustain the allegations against the two remaining its support for the warden’s decision Inmate- officers and elevated the matter to the warden’s to the department. However, based manufactured supervisor. The assigned department attorney, who on the poor legal advice from its knife with is one of the most senior attorneys on the Office of own attorneys, departmental executives scabbard Legal Affairs’ Employment Advocacy and Prosecution overturned the warden’s decision and decided Team, which is responsible for litigating the to not sustain the misconduct allegations department’s employee misconduct cases, reasoned against the two remaining officers. The OIG does not agree with the that the department could not successfully litigate an department’s ultimate decision that there would be no sustained employee discipline case before the State Personnel misconduct allegations against the two officers. Board based only on inmate testimony. The OIG is concerned that the department attorneys’ actions In meetings regarding this case, the department suggest an apparent bias and hostility against inmate testimony and attorney and his supervisor informed the OIG evidence provided by inmates, and set a dangerous precedent in which and departmental executives that the testimony of widespread officer misconduct, which in some cases cannot be proven inmates would be insufficient and that noninmate by any means other than evidence or testimony provided by inmates, testimony concerning the employee misconduct will go undiscovered and unpunished. The OIG believes that evidence was necessary to prevail. However, in the OIG’s concerning staff misconduct provided by an inmate and subsequent opinion, this position is not supported by current testimony proffered in a legal proceeding should not be disregarded, case law. The law states a witness’s testimony may based simply on the fact that it came from an inmate. The credibility be impeached if the witness has suffered a felony of information and testimony concerning staff misconduct provided by conviction involving moral turpitude; and yet, in inmates must be independently assessed for credibility, like any other determining the admissibility, the judge is to balance witness testimony, and should not be dismissed outright because the the probative value of the prior conviction against provider of the testimony is an inmate. Furthermore, simply because an its prejudicial effect (People v. Clark (2011) 52 C.4th individual is incarcerated does not mean he or she can never provide 856, Robbins v. Wong (1994) 27 Cal.App.4th 261, and credible and reliable information. Unless department attorneys change California Evidence Code section 352). However, this their approach and bias regarding inmate testimony, we question whether does not mean that inmate testimony is categorically they can effectively represent the department in such cases. OIG inadmissible or that it is not sufficient to sustain a finding of guilt or culpability. That is for the trier of fact, such as a judge, to decide. 10111 Old Placerville Road, Suite 110, Sacramento, California 95827 5 Telephone: (916) 255-1102 5 www.oig.ca.gov