Guarding their silence

Prisoners' rights advocates say a code of silence among prison guards led to the acquittal of the officers charged with arranging the rape of an inmate.

Published November 22, 1999 5:00PM (EST)

The acquittal earlier this month of four California corrections officers charged with arranging for a young inmate to be raped by Corcoran State Prison's notorious "Booty Bandit" was the result of a massive legal and political show of force on the part of the state's prison guards union, prisoners' advocates say. The four guards were facing nine years in prison.

State prosecutors alleged that in March 1993, the four Corcoran State Prison Security Housing Unit officers, led by Sgt. Robert Alan Decker, deliberately transferred inmate Eddie Dillard to the cell of Wayne Robertson, aka the "Booty Bandit" knowing that the younger, smaller inmate would be raped. At trial, Robertson testified that he had indeed beaten and sodomized Dillard for two days because guards had said that Dillard needed to "learn how to do his time."

But the defense -- led by four adroit lawyers and funded by the guards' union -- countered that the accused guards had no idea at the time that Robertson was a rapist. "I agree that Wayne Robertson is a rapist and a thug, but that fact was not known to the floor staff," said defense attorney Curtis Sisk in his opening arguments. One of the officers told the jury that the first time he even heard of Wayne Robertson was in an article in the Los Angeles Times.

The California Correctional Peace Officers Association -- which paid the defendants' legal costs and launched a media campaign to support them -- is one of the state's most powerful lobbies. During the last election cycle, the group poured millions of dollars into state races, supporting candidates from both parties and waging
a $2 million media campaign on behalf of Gov. Gray Davis.

"We are obviously very pleased. The four guards and their families are the real victims here," said union president Don Novey.

With a pending federal trial and several criminal investigations of prison staff still open, the CCPOA left as little as possible to chance during the state investigation and trial. The union's publication, the Peace Keeper, encouraged rank-and-file members not to trust or speak with the FBI and state investigators. Critics of the union say this and quick intervention by CCPOA lawyers effectively shut down the flow of information at the source.

As the so-called "Booty Bandit" trial approached, the CCPOA also turned to the public relations side of the political equation, targeting Hanford-area residents with a slew of radio and TV ads full of menacing, tattooed convicts and brave guards walking "the toughest beat in the state." (The union says the timing of the ads was mere coincidence, and was not related to the pending case.)

And once arguments in the case opened, the CCPOA's concern was manifest in attendance of a steady stream of local chapter officials and union heavies.

For prisoners' rights activists like Tom Quinn, a private investigator who specializes in researching cases against California jails and prisons, the presence of CCPOA honchos was just another example of how a code of silence is encouraged and enforced by the leadership of both the union and the Department of Corrections.

"Fundamentally, the claim that these guards didn't know that Robertson was a rapist is totally implausible," Quinn said. "The SHU [Security Housing Unit] is a unique social experiment designed to generate information." Along with elaborate records and dossiers kept on all the inmates, Quinn points out that guards have a relatively clear view into most of the SHU cells, both from the tier and from inside the control booth. "Furthermore," adds Quinn, "the C.O.s [correctional officers] are constantly working snitches. They know who's who. And they knew ... that Robertson was a rapist."

Quinn's claims were affirmed by Connie Foster, who worked as a staff member at Corcoran in 1993. "I heard about Robertson a week after I arrived," Foster said.

But despite claims like these, the state has had difficulty breaking the guards' silence. Among other things, say the union's critics, the CCPOA's massive campaign war chest has proved a valuable tool in discouraging local district attorneys from prosecuting cases against prison guards.

The Dillard case, for example, was almost filed by the Kings County district attorney, but Greg Strickland, who then held the county post, dropped the charges, citing lack of evidence. Many speculate that Strickland was also scared of the CCPOA. He had already crossed the group once, by prosecuting Corcoran guards involved in a 1995 beating incident. Sure enough, the union's wrath materialized during the next D.A.'s race, in the form of a massive campaign donation to Strickland's opponent. In testimony before a state legislative committee, Strickland suggested the creation of "an independent prosecution unit" because, as he put it, "My incumbent owes the CCPOA $30,000 worth of campaign contributions." That project was vetoed by Gov. Davis, but a compromise was eventually struck, leading to the creation of a new inspector general position, which is filled by gubernatorial appointment.

Lockyer spokesman Nathan Barankin said that getting good investigations from local prosecutors and police forces in the small towns that house many of these prisons continues to be a problem. He said in the Dillard case specifically, there was no investigation after the crime was committed.

Barankin did acknowledge that, in the wake of this case and the federal investigation at Corcoran, a number of changes have been implemented both by the Legislature and the Department of Corrections. Besides the new inspector general position, new shooting policies have been implemented at all state prison facilities.

Still, Barankin conceded, the new policies are not a guarantee that this will never happen again: "You can investigate until you're blue in the face, but you still have the question of who prosecutes it." Barankin said local district attorneys would normally prosecute these cases, but that in the small counties where most state prisons are located, "to accept one of these cases would eat up everybody you have in the place, plus every red cent you've got to get one of these cases to court." The local D.A. could hand the case off to the attorney general, but Barankin said by the time that happens, usually "the A.G.'s office comes in to pull together the pieces. D.A.s have their own investigators" who work closely with local police right after the crime is reported. "It remains to be seen if this new inspector general will work the same way."

While prisoners' rights activists sympathized with Barankin, they blamed Lockyer's office -- specifically deputy attorney general Vern Pierson -- for botching the prosecution. They say the state's strategy failed to make the code of silence and culture of terror at Corcoran central issues in the case.

Based on his research of California jails and prisons, Quinn said the "Booty Bandit" trial was about much more than the fate of four prison guards. "Clearly, part of what was on trial here was the guards' code of silence, the power of the CCPOA and the culture of terror that defines life in California's maximum security prisons," he said.

Quinn acknowledged that much of that was impossible to pursue in court when Judge Louis Bissig disallowed conspiracy charges brought against the four guards. "Our hands were tied by some of the judge's rulings and the fact that it took five years for this crime to surface and be prosecuted," Pierson told the Los Angeles Times. "And it's never easy when your best witnesses of what really happened are felons and officers who have committed [crimes] themselves."

That sentiment was echoed by Barankin. "Having the conspiracy charges thrown out by the judge was gigantic. That can't be quantified," he said. But Barankin conceded that "there were all sorts of places along the way where things fell apart."

Activists say much of the blame rests with Pierson, arguing that his most crucial misstep was the handling of star witness Roscoe "Bonecrusher" Pondexter. A former guard and onetime professional basketball player, Pondexter testified against the four accused guards in exchange for immunity from prosecution.

Pondexter testified that he was once a sadistic "search and escort" officer in the Corcoran SHU. He ran with a gang of guards called the Sharks and his specialty was to beat and strangle prisoners. "We would show them 'the Corcoran way' and tell them this was a 'hands on' institution," said Pondexter. He was eventually fired for brutality.

But Pondexter's testimony was later picked apart by defense attorney Katherine Hart, who showed that Pondexter was on vacation the day Dillard was moved into the Booty Bandit's cell. Pondexter had previously testified he was working that day. "You had a faulty memory about that, didn't you?" asked Hart.

"Yes," Pondexter admitted, squandering much of his credibility in the process.

Afterward, a vexed and embarrassed Pondexter was heard complaining to a friend that Pierson hardly prepared him for testimony, briefing and questioning him for only 25 minutes, just before he took the stand.

Barankin refuted that claim, saying prosecutors spent "a considerable amount of time preparing Mr. Pondexter for the trial." When asked about why they did not check records that showed Pondexter was not even working that day, Barankin said, "The defense had access to information we didn't have. We found out the same time [the jury] did."

Also missing from the state's case was much of the detail that had emerged during grand jury testimony and during last year's legislative hearings. According to both these inquiries, the story of the Dillard rape and ensuing coverup went as follows: Dillard and Robertson -- both members of the Piru Bloods, a Los Angeles street gang, though separated by a 20-year age difference -- had first come into conflict at Tehachapi State Prison in 1992. There Robertson made sexual advances on Dillard and was rebuffed. Soon thereafter Robertson, already a documented jailhouse rapist, was transferred to the Corcoran SHU.

In 1993, Dillard kicked a female guard and was sent north to Corcoran. In his grand jury deposition, Robertson told how Sgt. Robert Alan Decker showed him a list of four proposed cellmates. Robertson chose Dillard and a few days latter, while lying on his bunk, looked up to see the protesting Dillard being thrust into his cell by two officers.

Dillard explained the rest when he took the stand: "Before I knew it, we were getting into it. We were tussling and he said he was going to rape me. I tried to fight him off but I couldn't. He raped me," said, Dillard, his voice breaking. Dillard finally escaped the cell when guards came to take Robertson to an unrelated disciplinary hearing. Desperate, Dillard refused to re-enter the cell.

Finally, Dillard told an officer that Robertson had raped him. The officer filed a report and passed it on to a sergeant, but the report was lost. Dillard was then examined by a prison medic, who saw no sign of rape. A doctor examined Dillard and ordered a "rape kit" -- a full internal rape examination -- but the order was quickly and mysteriously countermanded and Dillard was never properly examined. After getting a new cell, Dillard started sending administrative complaints, known as "602s," about Sgt. Decker and the rape to officials in Sacramento.

Records show that on June 16, 1993, Dillard suddenly withdrew his complaint and stopped his follow-ups. That was the same day that Decker signed in for a visit with Dillard on his new cell block. According to Dillard, Decker gave him a simple choice: Drop the 602, or go "back in the cell with Robertson."

Little of this chronology was spelled out during the trial, though, and none of the defense witnesses seemed to remember much -- all of which undermined the prosecution's case.

"We went over everything, covered everything, a lot of documents," the jury foreman, who declined to give his name, told the Los Angeles Times. "In the end, there was just too much reasonable doubt. There just wasn't a lot of evidence that supported what the prosecutor was trying to prove."

That was the fault of the prosecution, said prisoners' rights attorney Catherine Campbell. "My impression was that [Pierson] was on automatic, doing a job that was distasteful to him," she said. "He had no moral passion. The lapses, particularly the one with Pondexter -- that sort of thing throws a witness off center."

The attorney general's office stood by Pierson, saying that he had inherited an impossible situation. "The football field is littered with Monday-morning quarterbacks," said Barankin. He agreed that "most right-thinking people should feel a sense of moral outrage based upon the evidence that we were privy to. Unfortunately, the jury was not allowed to hear all that evidence."

The issue of the code of silence may yet be raised in court. Eight other guards stand trial in March on federal charges for shooting Corcoran inmates.

By Christian Parenti

Christian Parenti is the author of "Lockdown America: Police and Prisons in the Age of Crisis."

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