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Standing Up to Corruption
In her letter supporting the nomination of investigator Joe Reynoso for the Award of Ethical Courage, federal prosecutor Melinda Haag never used the word hero, but her implication was clear. Haag described the hardships and trauma that Reynoso, who worked for the California Department of Corrections (CDC), had to endure during the years he helped her build and prosecute the federal governments case against prison guards Jose Garcia and Michael Powers of the Pelican Bay State Prison in Del Norte County. It was one of the most publicized, high-profile trials of the prison-scandal-ridden 1990s, and the assistant U.S. attorney and state investigator worked side by side.
Before he agreed to help Haags team, Reynoso had worked for years at Pelican Bay as a guard, sergeant and lieutenant, and was liked and respected by his peers. But when he began assisting the federal government with its case, he was seen by some co-workers as a traitor for acknowledging the dirty laundry of the close-knit prison community.
Reynoso had violated the code of silence, which required prison employees to ignore, or help cover up, the misconduct of co-workers. Actually assisting outside federal investigators, as Reynoso did, was a potentially fatal breach of the code.
Reynoso was told by a number of colleagues that he was hurting his career and should get off the case, recounted Haag. But the reaction went beyond career advice. The tires on his personal vehicle were slashed, and the doors were keyed, she said. Reynoso was labeled a rat--the ultimate insult in the cliquish world of prison workers-- and officers who had been Reynosos friends would not speak to him (at least in front of anyone else), she added.
Eventually, the retribution took its toll on Reynoso and his family, and they moved south to a city near Sacramento. He and his wife sold the lovely home they had designed and built together, and moved hundreds of miles away so they could shop, see movies and live their lives without enduring glares and whispers from their neighbors. All because he was just trying to do his job, said Haag.
The Powers-Garcia case, as it came to be known, was complicated and involved 11 separate incidents spanning a four-year period, requiring testimony from more than 35 witnesses, and the trial took two months before it was handed over to the jury. With Reynosos help, Haag convinced the jury to convict Powers and Garcia of conspiring to violate the civil rights of prisoners by arranging to have them beaten or stabbed by other prisoners, or by carrying out the assaults themselves.
One prisoner was stabbed to death at Powers behest, according to the indictment. Haag called Reynoso the single most important person to the prosecution team. [Editors Note: As reported in the May, 2006, issue of PLN, despite being sentenced and losing their appeals, Powers and Garcia have, as this issue of PLN goes to press, yet to actually go to prison and the prosecution appears to be in no hurry to send them.]
The ethical-courage award is given by the California Peace Officers Association, whose membership represents more than 538 police and law-enforcement agencies in the state. Each year the association gives out awards for valor, distinction and professional achievement to law-enforcement officers. The ethical-courage award, however, is unique and is not necessarily given out each year, but only when a peace officer breaks the code of silence and exposes inter-agency or similar misconduct. It is intended to commend and spotlight individuals who do not confuse silence with loyalty and integrity and who have the strength of character to withstand the criticism and accept the personal risks associated with their decision, explained association executive director Rich Gregson.
On June 8, 2005, at a ceremony in Indian Wells, the award was presented to Reynoso by California Attorney General Bill Lockyer. The recognition that I got from the other law-enforcement people that were in the room validated my work, he said. After he received the award, some of the other law-enforcement officers in attendance came up to him and offered him encouragement and support. They said, Congratulations on a tough job, Not enough people do what you did. Congratulations for sticking it out, he recalled.
The peer reinforcement meant a lot to Reynoso because his own employer essentially ignored his achievement in the successful Powers-Garcia prosecution and his receipt of the ethical-courage award. Even though a letter announcing Reynosos award was sent to then-California corrections czar Rod Hickman, all I got from my own department was Oh, you pissed off a lot of people. Man is your career over, he said. A call to CDC spokesman J.P. Tremblay confirmed Reynosos frustration regarding recognition: Tremblay was unaware that Reynoso had received the award.
Reynoso barely had time to savor the moment of honor because he was working up to 12 hours a day to help the government prepare for a new federal criminal trial against another Pelican Bay prison guard, Dave Lewis. Reynoso had worked the case, off and on, for more than 10 years, and the trial would be the final showdown from the Powers-Garcia era. Like Santa Barbara County District Attorney Tom Sneddons unrelenting 10-plus-year pursuit of Michael Jackson, Reynoso had a piece of his psyche in this battle. But unlike what happened with Jackson, who escaped Sneddons grasp in an earlier alleged child-molestation incident by paying off the victim, Reynoso had helped the feds put Lewis away once before, only to see his conviction reversed on appeal and a new trial ordered. Reynoso had a huge investment of pride and emotion in the case and viewed its anticipated outcome as the final vindication of the years of sacrifice that had irreversibly altered his life.
The case was expected to be difficult to prosecute because some of the witness challenges from the first trial and the Powers-Garcia case were expected to occur in the Lewis retrial. The witnesses are very reluctant to take the stand again for us, Reynoso said.
In her letter, Haag recited some of the witness-intimidation problems from the Powers-Garcia prosecution, including a Pelican Bay female staff member who had human feces spread on her car in the prison parking lot. Another witness, who had critical evidence proving that the defendants were involved in having a prisoner stabbed, had to take a stress retirement. One staff witness literally begged us in the hallway outside of court not to ask him to go through with testifying--he was happy in his current assignment, his children were happy in their schools, and he was certain he would have to move if he went through with testifying, and prosecutors honored his request. In addition, prisoner witnesses faced the possibility of retaliation by staff and the prison gangs in their employ. Haag said Reynoso had the unique ability to work with and reassure both employee and prisoner witnesses because he understood the prison culture.
The final prosecution of Lewis would be a pivotal point in the ongoing struggle between the handful of CDC employees, like Reynoso, willing to stand up to the corruption, endure the retaliation that was guaranteed to follow, and weather it all with virtually no support from the higher-ups at the CDC. Reynoso also stood up to the money and power of the prison-guard union. And, for a prosecutor, the landscape was littered with those who had sought justice but had failed to bring back the coveted criminal conviction, the only measure of success.
After three years of false starts and delays, the second Lewis trial finally went before a San Francisco jury in June, 2005. But the outcome would leave a permanent scar on Reynosos soul.
About a year before Reynoso was forced to move from his Northern California home, the states prison-guard union, the California Correctional Peace Officers Association (CCPOA), held its 25th annual convention in Sparks, Nevada. Taking place just two weeks after the September 11 World Trade Center attacks in 2001, the event had the theme Of heroes and healing, according to a detailed post-convention report, with 26 color photos, in the unions in-house magazine, Peacekeeper.
The convention planners drew a connection between the firefighters and police officers killed in the World Trade Center disaster and the brotherhood of California prison guards. Two weeks following the tragedies of September 11, where the professions of law enforcement and fire and rescue lost so many of their own trying to save the doomed souls in the World Trade Center, CCPOAs annual convention was marked by the shocked and sad faces of a brethren of peace officers mourning the loss of their brothers and sisters 3,000 miles away, reported Peacekeeper. The convention floor featured a replica of the Statue of Liberty, and a photomontage presentation of the terrorist attacks stunned and hushed the crowd and then brought the delegation to its feet chanting USA, USA, USA.
A live and in-person hero highlight of the convention, attended by more than 1,000 union members and their families, was the triumphant return of former Pelican Bay prison guard Dave Lewis. Just weeks before the convention, Lewis had been released after serving 15 months in federal prison for the 1994 nonfatal shooting of prisoner Harry Long after an altercation in the prison yard. In 1999, the government indicted Lewis, claiming that he deliberately shot Long because he believed Long was a child molester. In early 2000, Lewis was convicted and then sentenced to more than seven years in prison and fined $2,000, but then he was released pending the outcome of a retrial ordered by the appellate court. At the convention, Lewis took the stage against a dramatic backdrop--decorated in a red, white and blue star-spangled theme that might have made Leni Riefenstahl blush--and recounted his ordeal to the audience. On his conclusion, his peers gave this hero a standing ovation, said Peacekeeper in its account of the moment.
Reynoso, who used to be a member of the CCPOA, is disturbed by the unions promotion of Lewis. Its a disgrace to think that you have an employee who youre propping up as a hero, compared to a lot of people who do a great job and should be heroes--people who do their job everyday and dont get in any trouble and finish their careers, he said.
Indeed, to an outside observer, the elevation of Lewis to hero status by the CCPOA might seem puzzling. In 1996, two years after he had shot Long but when he had yet to be indicted by the federal government, Lewis was still working at Pelican Bay when he was fired by the state for an assortment of misconduct unrelated to the Long incident. According to State Personnel Board (SPB) and court records, Lewis was canned for inexcusable neglect of duty, discourteous treatment of the public or other employees, willful disobedience, and other failures of good behavior that caused discredit to the CDC. Among other employee rule and regulation violations, Lewis routinely referred to black inmates as primates, monkeys, toads, and niggers and also was accused of demeaning actions toward sex offenders, including referring to child molesters as Chesters, according to the records.
The nine-year veteran also was found to be dishonest because he gave false statements during the investigation of his misconduct. His termination was affirmed by an SPB administrative-law judge who also noted that the likelihood of recurrence is significant given [Lewis] dishonesty at the investigation of the incident, continued denial of wrongdoing at the [SPB] hearing, and his apparent lack of remorse. (Lewis did not respond to several interview requests relayed through his attorney and the union.)
And here youre holding up a guy as your hero who was fired by the department for misconduct and racism and other stuff, and shot a guy. I mean its a disgrace to what CCPOA claims they stand for, working the toughest beat in the state. Its incredible, Reynoso said.
But what was apparently more important to the union officials and convention delegates was that Lewis had beaten the federal governments case against him, at least for the time being. The subject of Lewis return and retrial was the cover story in the next issue of Peacekeeper (January/February 2002). The article, Miscarriage of Justice--A former correctional peace officer is forced to relive a nightmare as he prepares for a retrial, detailed a litany of alleged government misconduct from Lewis first trial and implied that Lewis was the victim of a conspiracy between CDC internal-affairs investigators, including Reynoso, and the feds.
Yes, there does seem to be a conspiracy afoot, surmised the story. The article also said that Lewis and his new and improved legal team, which included nationally renowned San Francisco criminal-defense attorney Dennis Riordan, were anxious to get the retrial started. Although Lewis initially refused to waive his right to a speedy trial, the proceeding was in fact delayed for more than three years. At the end of June, 2005, the day of reckoning finally had arrived. Surrounded by his high-priced legal team and a small entourage of CCPOA officials, Lewis walked into a federal courtroom in San Francisco and confronted the nightmare.
When the United States of America v. David Gene Lewis criminal trial began on June 27, 2005, both sides had pride and ego at stake, as well as a sizeable financial investment in the case. Reynoso estimates that the CCPOA had gambled well more than a million dollars of its members money to defend Lewis (CCPOA Vice President Lance Corcoran declined to estimate what the union had spent on the case). It was a gamble because, under the terms of the unions contract with the state, if Lewis was found not guilty, the taxpayers of California would have to pay Lewis attorney fees and all related costs of his defense. If they lost, the guards union would eat the sizeable investment, which dumbfounded Reynoso. Because theyve held this guy up as their hero, theyre willing to go to the mat for him, he said.
The federal government undoubtedly had spent even more. At least two FBI agents, prosecutors and support staff had worked on the case off and on for more than 10 years. The result of the prosecution likely was also important to the governments self-esteem: It was still stinging from a defeat in a similar, but much larger, case it had lost in a federal courtroom in Fresno in 2000. In that case, eight Corcoran state-prison guards were acquitted for allegedly setting up prisoner fights and shootings for blood sport. The scandal had gotten nationwide coverage, including a segment on 60 Minutes.
The retrial of Lewis began on the last Monday in June with jury selection. By the end of the day, the jury was seated, and Reynoso was cautiously upbeat. They think they got a good jury, and we think we got a good jury, so one of us is full of crap, he joked.
Riordans defense team was trying to block some documents from being admitted into evidence, and Reynoso spent that night rounding up written declarations from CDC officials in order to validate the records. On Tuesday, federal prosecutor Laurel Beeler got the case under way. Lewis was charged with depriving Long of his constitutional right not to be subjected to cruel and unusual punishment by assaulting him under color of law and, in a second count, using a firearm in connection with the deprivation of Longs rights.
In essence, Beeler had to prove that the shooting was deliberate and did not comply with CDC policy, which only permitted shooting to break up a fight if a prisoner faced an imminent threat of great bodily injury or death. In most cases, that standard was interpreted as requiring the possession of a weapon by one or more prisoners, and neither Long nor his assailant was found to have a weapon.
On Tuesday and Wednesday, a parade of prisoner and prison-employee witnesses testified to various aspects of the incident, essentially painting a picture of a minor fistfight between two prisoners without weapons. On cross-examination, Riordan attempted to discredit the governments witnesses and, in particular, the prisoner witnesses, by pointing out their generally extensive and, in some cases, heinous criminal histories. Riordan also hammered home the fact that the convicted felons were given, or were potentially eligible for, sentence reductions of three to six months for their testimony against Lewis.
On Thursday, Beeler called to the stand a CDC training officer who testified that Lewis had attended an annual group training session less than a month before the shooting. The class included instruction on the CDC shooting policy. This was one of the strongest parts of the prosecution case, according to Reynoso. He also reviewed several shoot/dont shoot scenarios where he said adamantly, I do not teach that you can shoot for a fistfight, he said. The training officers testimony was incriminating, and Riordan spent more time on cross-examination of the witness than he did on any other, according to Reynoso. Riordan got the witness to admit that even without a weapon, a prisoner conceivably could use a bare fist to kill or cause great bodily injury. But clearly the evidence that the training officer put in showed that you could not shoot a man for a fistfight, Reynoso said.
The last witness of the day was Reynoso, who mostly testified to the authenticity of the records in the case, the cell histories of the prisoners, employee time sheets and other technical aspects of the evidence. At the conclusion of his testimony, the government rested its case. The jury was given Friday off while the lawyers met with the judge to hear a motion. The defense case would begin on the Tuesday following the three-day Fourth of July weekend. It was anticipated that the defense case would run a week or longer.
On that Tuesday, Riordan began the defense by entering into evidence a portion of an official CDC report on the shooting. CDC regulations required that the investigation of all shootings be conducted by a Shooting Review Board (SRB), which is partly made up of prison officials from other institutions. The SRB then determines whether the shooting was justified and complied with CDC policy. Riordan had the jury read the report, which had concluded that the Lewis shooting did not violate CDC rules. Without putting Lewis on the stand, Riordan then announced that the defense case was finished. Keeping Lewis off the stand, Riordan later explained, prevented him from being grilled on cross-examination and possibly opening the door to the potentially damaging details of his 1994 job termination. [W]e wanted to keep the focus on their case, he said.
The prosecution was caught off guard by the abbreviated defense, but it had expected Riordan to bring up the SRB report, and Reynoso had prepared an elaborate rebuttal to the report, which, in connection with a long-running federal civil case against the CDC, Madrid v. Woodford, had been independently reviewed by a court-appointed investigator in 2004. The review concluded that no competent manager would use the SRB report as a valid basis for finding that Mr. Lewis acted in conformance with policy in the use of lethal force against inmate Long. The report raises more questions than it answers, is superficial, and fails to address the legal standard for using lethal force. In fact, during the 1990s, the SRB report process statewide was found to be grossly inadequate, leading to legislative hearings and major procedural changes to the shooting-review process.
The Lewis jury wasnt shown any evidence that the SRB process statewide, and the Lewis SRB report in particular, had been significantly discredited.
When Beeler told Reynoso she had decided not to offer evidence to discredit the SRB report, Reynoso was taken aback. I was [thinking], What the hell are we doing? We could have shredded [the report] to pieces, to pieces. The state SRB process was a sham! he recalled. Reynoso said Beeler attempted to downplay the SRB report in her closing argument, but without having presented evidence to back up the assertion, it was too little too late. I knew then wed been beat. If we cant rebut the SRB, were through, he said.
Beeler told Sacramento News and Report she couldnt discuss the case without permission from U.S. attorneys office spokesman Luke Macaulay. Macaulay said the office wont be able to make [Beeler] available for an interview and instead provided a written statement from U.S. Attorney Kevin Ryan. Ryan said he was gratified by the dedication and commitment of our trial team and wanted to thank everyone, including the FBI and the CDC for their support and participation in the case.
After Riordan and Beeler completed their closing arguments late that Tuesday, the case was sent to the jury. The jury came back that Wednesday morning and deliberated for about three hours before returning a verdict of not guilty on both counts. And Dave Lewis walked out of the courtroom a free man.
Well, I think its fair to say he was extremely relieved, Riordan said after being asked for Lewis reaction to the verdict. Even though he was terminated by the CDC in 1996, Lewis was granted industrial disability retirement status and gets $2,156 in retirement pay each month, according to Brad Pacheco of the California Public Employees Retirement System.
Reynoso obviously was frustrated by the trial outcome, and his concerns about the governments failure to effectively rebut the SRB report turned out to be valid. Both Riordan and Reynoso talked with several jurors when the case was over and confirmed that the report, which was virtually the entire defense case, had been the key piece of evidence that persuaded the jury. One juror we talked to afterward said, We were of the opinion that if Ms. Beeler was going to argue that we shouldnt give the SRB report any credibility or any credence, then we thought, Well, then why didnt she put in any evidence to back that up? Reynoso said. Riordan talked to a juror who was also a lawyer. The juror confirmed that the SRB report was important and that the government failed to prove its case beyond a reasonable doubt. [The juror said] that if it had been a civil case, they might well have concluded that the shooting was negligent, but they definitely didnt think that he had criminal intent, Riordan said.
Lance Corcoran, the CCPOAs vice president, called the verdict a victory not only for Lewis, but also for the profession. He attributed the prosecution to vindictiveness--a payback by the federal government for its loss in the Corcoran prison case of 2000. I mean, this is a story about federal court abuse; this was truly a case of politics, he said. They brought a case that had no merit whatsoever. Corcoran is also bitter at the CDC for not providing Lewis legal representation from the beginning. What kills me is even though his department cleared him of wrongdoing, they did nothing to support him, he said.
Corcoran said he has great respect for Lewis, whom he called a gentle soul and an amazing man in spite of his abruptly ended career. He was terminated for some really awful language, and he acknowledged that. Hes noble in that he acknowledges his mistakes, he said.
At least one member of the CCPOA rank and file also was apparently elated by the verdict. An Internet message board used by Pelican Bay guards posted the outcome of the trial within 24 hours after the jury decided the case. WHAT A RESOUNDING NOT GUILTY this was from the federal courts in San Francisco, read the post. Illustrating that not much has changed in the workplace culture at the prison, the author also had a coded message for Reynoso and another CDC investigator that had worked on the case. [T]o those two idiots involved in this case from the [CDC] who helped in the harassment of Dave Lewis I say, See that blinking light in the corner of your eye ...
Reynoso explained that the message was a veiled threat promising future payback. The blinking light in the corner of our eye is the train coming; the trains coming after us now, he explained.
But it wont be the first train he has stared down, and, for now, he is glad to be out of the partnership with the federal government and will go back to working on run-of-the-mill CDC investigations, preferably not involving staff misconduct. He said he would not object if he never has to work on another case against a corrupt co-worker.
Im never going to do a staff case again, not like this. Not until the department is really and truly reformed to where they support this kind of an effort. The department has to be behind a guy thats doing this. If theyre not, it makes for a miserable existence.
Stephen James is a freelance reporter in Sacramento. This article originally appeared in the Sacramento News and Report. It is reprinted here with permission.
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