The Public Eye: Due process for prisoner proceedings allegedly violated

Sacramento Bee
By Charles Piller
Published: Sunday, Aug. 1, 2010 – 12:00 am | Page 1A
Last Modified: Monday, Aug. 2, 2010 – 9:30 am

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The prison official assured his warden in an e-mail that everything was set: A group of 77 inmates accused of interfering with officers would be found guilty, no matter what.

Disciplinary hearings – required proceedings where inmates can defend themselves with witnesses and evidence – had not yet taken place at North Kern State Prison.

Yet, in the April e-mail obtained by The Bee, acting Associate Warden Steven Ojeda promised to provide the hearing officers – lieutenants he supervised – “with direction prior to the hearings and ensure they understand to hold all of these inmates accountable.”

Leaving nothing to chance, Ojeda prescribed punishments, too: loss of good-behavior credit and visiting privileges, threat of a term in one of the prison system’s security housing units – called “the hole” by prisoners – and other serious penalties.

By acting as judge and jury, Ojeda fit a pattern, a Bee investigation has found, that suggests widespread suppression of inmates’ rights to contest allegations by guards or pursue claims of mistreatment.

Current and retired officers, prisoners and parolees allege that correctional officers and their superiors routinely file bogus or misleading reports, destroy or falsify documentation of abuses, and intimidate colleagues or inmates who push back.

Sources with firsthand knowledge called the problem pervasive, offering dozens of examples. Even if the allegations are valid for a fraction of cases, thousands of prison terms could have been extended improperly at vast cost to taxpayers.

One North Kern employee familiar with the Ojeda situation spoke to The Bee anonymously for fear of retaliation. He said officers given the orders were “shocked” that Ojeda would formalize an abrogation of due process.

Neither acting Warden Maurice Junious nor Ojeda returned calls or e-mails seeking comment.

A corrections spokesman said that 33 North Kern inmates did not have good-behavior credits removed, and four of the 77 prisoners received penalties less severe than 90 days forfeiture of good-behavior credits, proving that inmates were not prejudged.

But in the 33 cases noted, all inmates were found guilty and were spared a loss of good-behavior credits only because their paperwork was filed late. The North Kern source said internal records confirmed the remaining cases as pending.

Scott Kernan, corrections undersecretary for operations, last week called Ojeda’s e-mail “inappropriate” and “improper,” and said it might signal a need for training. But he said it could have been intended to ensure an even-handed approach.

Kernan said he would look into the incident but defended prison due process as having “served the state well (as) a fair and appropriate system, and time-tested.”

Told of Ojeda’s e-mail, Michael Gennaco, who monitors the Los Angeles County Sheriff’s Department for officer misconduct and helped design a similar system for California prisons, said it seemed to violate inmate rights.

Basic fairness depends on “providing inmates with a level of due process,” he said, “which isn’t much.”

Daniel Johnson, a recently retired state prison research analyst, was assigned in 2008 and 2009 to record information into a database from about 10,000 employee-misconduct appeals filed by prisoners over more than five years. He told The Bee that virtually every complaint filed against a correctional officer was rejected by officials, including hundreds of appeals alleging physical abuse “even when medical records supported the complaint.”

Of course, prisoners lie about mistreatment; Johnson said many complaints he reviewed appeared unwarranted. But there were many “clear instances,” he said, of manipulation by officials “in what I would say is a criminal manner.”

Kernan, however, said that “typically, research analysts would not have enough information while inputting data to make such a conclusion.” He called corrections “the most investigative law enforcement organization in the state” and one that is continually “rooting out misconduct as diligently as we possibly can.”

Blood pooled near his head

Kenneth Hernandez’s fate was sealed by a guard’s grunt.

That small utterance took on larger significance at High Desert State Prison in Susanville, 200 miles northeast of Sacramento, where Hernandez was imprisoned on drug and weapons charges. He was housed in a gym filled with bunk beds and lockers – typical in the state’s crowded prisons.

On May 26, 2004, Hernandez, then 21, had the misfortune of crossing paths with Officer David Sharpe between rows of beds. Sharpe said Hernandez struck the guard’s chest with his elbow. Another guard said he heard Sharpe grunt. Hernandez denies any such attack.

In sworn statements, witnesses said that Sharpe, who stands 6 feet tall and weighed about 300 pounds, bear-hugged Hernandez – 5 feet 9 and 140 pounds – from behind. He threw Hernandez head-first into a metal locker. Hernandez fell to the floor, with Sharpe on top of him, then twitched and jerked violently. Blood pooled near his head.

In a subsequent court proceeding, Sharpe confirmed those events but faulted the confined area and said he did not intentionally injure Hernandez.

“He’s having a seizure!” some of the prisoners said they shouted in alarm. Sharpe kneeled on the back of the convulsing prisoner.

“Shut the f— up!” Sharpe yelled, pressing his forearm against the nape of Hernandez’s neck, according to inmate witness statements in the prison investigation report.

Hernandez was airlifted to Reno for emergency surgery, his skull fractured.

Back in his cell weeks later, Hernandez suffered from facial paralysis, seizures and vomiting, according to medical records. He also had to defend himself against the serious charge of assaulting an officer.

Hernandez told The Bee he didn’t get a fair hearing because key evidence was barred. The prison investigator disallowed photographs of the scene, a complaint by other inmates alleging criminal misconduct by Sharpe, and statements from FBI examiners, according to his report.

Also rejected by the investigator was Hernandez’s “stress voice analysis” – a lie-detection method – conducted by High Desert internal affairs, which the inmate claimed proved his innocence.

The investigator did include in his report accounts of inmates, who said they saw Sharpe attack Hernandez without provocation. None said Hernandez attacked the officer and no guards witnessed the event.

But the hearing officer, Lt. J.L. Bishop, said the inmates’ testimony “lacks credibility,” because they fear revenge from other prisoners for supporting a guard.

Guards said that inmates moved to the floor reluctantly when ordered to during the altercation, Bishop wrote. That reticence, he said, “strongly colors this incident in staff-assaultive tones.”

The linchpin was the officer’s recollection of the grunt.

Sharpe’s grunt, “prior to commanding the inmates to ‘get down’ strongly indicates that he was struck with force,” Bishop wrote, “and without warning.”

Bishop found Hernandez guilty and sentenced him to five months’ loss of good-behavior credit, a year without family visits and a possible term in the hole.

Six years later, Hernandez is out on parole. He still has trouble with balance, and said in cold weather the clip that secures his skull makes his head ache. As of 2009, Sharpe still worked at High Desert.

‘I’ll answer to God’

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