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| Center on Juvenile and Criminal Justice, 1622 Folsom Street, San Francisco, CA 94103 | Tel: (415) 621-5661 | Fax: (415) 621-5466 |
SACRAMENTO - California's justice system may be "paralyzed" when it comes to prosecuting prison employee misconduct, critics said Thursday, as Attorney General Bill Lockyer and local prosecutors continued passing the responsibility to each other.
Neither has filed criminal charges against California Youth Authority employees videotaped as they beat two wards, nor against other employees internal investigators say filed false reports in the Jan. 20 incident at Stockton's N.A. Chaderjian Youth Correctional Facility.
State Sen. Gloria Romero, who heads a prison oversight committee, and Prison Law Office Director Don Spector, whose office is suing the state alleging widespread employee brutality, ratcheted up pressure for prosecutions by publicly airing for the first time the 55-second videotape of the fight.
Prosecution by someone is critical, they contended, as the state tries to regain control of both its youth and adult prison systems, and fight what prison officials and a federal court-appointed monitor say is a "code of silence" that protects wrongdoers and punishes whistleblowers.
Romero, D-Los Angeles, said she will introduce legislation next week empowering Lockyer to handle all such cases at state facilities, and letting the prison system's inspector general also bring criminal charges.
Lockyer has that power now, but not the financial resources, said spokesman Nathan Barankin. A bill that would have given him both failed in 1999 with opposition from the California Correctional Peace Officers Association.
That leaves the state's legal system "sort of paralyzed as to who can prosecute employee misconduct," Spector said.
Lockyer's decision is awaiting an enhancement of the videotape that might show more detail, said spokesman Nathan Barankin. But he defended Lockyer's policy not to overrule local prosecutors' decisions unless there is a clear abuse of discretion.
San Joaquin prosecutors initially indicated several charges could be filed, but they declined so Lockyer could take the lead in prosecuting state employees at a state facility.
Assistant District Attorney James Willett said Thursday they ultimately decided, "In consideration of all the evidence, there's no reasonable likelihood of conviction." They won't reconsider that decision, Willett said.
Details of the fight have been widely reported, but the newly released videotape quickly began airing on television stations around the nation.
It shows the fight between two correctional counselors and two inmates, ages 19 and 21, spilling out of an office into a large commons area.
After both youths are face-down and unresisting, the video shows one counselor, Delwin Brown, punching one of the wards in the head about 28 times. The second counselor, Marcel Berry, after subduing his ward, kicks the youth before walking away.
A third employee, Stevie Chiu, repeatedly sprays the wards with pepper spray, continuing after they are subdued. And a fourth appears to shoot one of the unresisting youths with a paintball gun loaded with pepper spray pellets.
"I believe the counselors were defending themselves," said David Darchuk, president of the institution's union chapter, after viewing the video.
He noted the video does not show the beginning of the incident in the office, where internal investigators say one of the youths started the fight by punching Brown in the nose, breaking it and causing substantial bleeding.
A union statement says the video was released "to generate sensational headlines. As a result, the investigation has been hopelessly compromised, due process has been undermined and any hope of a fair and impartial review of all the facts has been lost in a media frenzy."
The San Joaquin County District Attorney's office concluded it was unlikely Brown would be convicted because he was attacked and was still reacting during the ensuing struggle.
Berry could be charged with a misdemeanor for making "a slight kicking motion" that left a bruise, said Deputy District Attorney John R. Soldari in a Feb. 6 letter. And Chiu could be charged with a misdemeanor for making a false report, Soldari concluded.
But he said San Joaquin would let Lockyer's office decide whether to prosecute. Local prosecutors considered charging two other employees with filing false reports, but decided they couldn't prove intentional deception, Soldari said. They also decided they couldn't prove the employee who used the pepper spray gun acted inappropriately.
Willett said the office ultimately decided the evidence supported no charges, regardless of what Lockyer determines.
Lockyer hopes an enhanced video will show what happened inside the office through a window that is opaque in the raw video, along with where Berry kicked the ward and whether the paintball gun was indeed fired, Barankin said.
Prosecution also is more difficult because wards and employees who talked to internal investigators aren't talking to investigators now, he said. Lockyer's office also is considering the histories of both the wards and the employees in its decision.
Though San Joaquin County prosecutors passed the decision on the employees to Lockyer, Romero and Spector noted they readily filed assault charges against the two wards, dropping the charges only when Brown and Berry refused to testify, citing their right to avoid self-incrimination.
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