GUARDS UNION SLOWED PROBE, AUTHORITIES SAY

FRESNO--For three weeks, the state prison guards union prevented homicide
detectives from questioning guards about the fatal shooting of inmate
Octavio Orozco at Pleasant Valley State Prison in May, county authorities
say. Fresno County Dist. Atty. Ed Hunt said Tuesday that the investigation
into possible criminal conduct was hindered because of the delay in
questioning both the guard who shot Orozco and the guards who witnessed the
killing at the prison in Coalinga.

"The [union] attorney showed up, said he was representing all the officers,
invoked an attorney-client privilege, and we were handcuffed from talking
to the officers," Hunt said. "Three weeks might be a long time, but if we
find out the officers concocted their stories during that time or
obstructed justice, that's a high crime in Fresno County and we'll
prosecute." The case is the latest example of accusations that the powerful
guards union has thwarted criminal and administrative investigations into
brutality at prisons statewide. The FBI is currently investigating whether
actions by the union at nearby Corcoran State Prison constituted
obstruction of justice, federal authorities say.

Union officials have characterized their efforts as tough but lawful
representation of their members.

The Orozco case is also an example of officials in some counties failing to
use all the options at their disposal to investigate shootings of inmates
by prison guards.

Over the last 10 years, for example, county prosecutors have failed to
question witnesses in many of the 39 shooting deaths in California's prisons.

In some shooting incidents that have been investigated, county prosecutors
have encountered union resistance. None of the shooting deaths has yet led
to a criminal prosecution.

In the Pleasant Valley shooting, Hunt said his office decided not to call a
grand jury to try to compel the officers to talk, or to offer any immunity
deals.

Such deals, designed to get officers to testify against each other, might
give immunity to the wrong officer early in an investigation.

But Hunt said he was not aware of a law that requires a guard to cooperate
with a criminal investigation. The law is an important tool that can be
used to urge prison officers to cooperate under the threat of insubordination.

Accounts Differ of Slaying Aftermath

Fresno County homicide investigators said that, prior to the Orozco
slaying, they had not encountered a peace officers union blocking
interviews with officers who witnessed or participated in a shooting.

They concede that they allowed the union to dictate the terms of the Orozco
investigation, and that the delay cost them valuable time and jeopardized
the truthful flow of information.

"I can see them denying us access to the guard who shot the inmate for a
day or two, but not for 22 days and not the guards who were pure
witnesses," said one homicide detective, who asked not to be named because
of a county policy to not comment on pending investigations.

"As an investigator, the last thing you want is to wait that long to get
statements because they can all get their stories straight," he said.

The seven-month investigation has not yet concluded.

The union attorney who represented the Pleasant Valley officers, Chris
Howard, was unavailable for comment this week. Don Novey, president of the
California Correctional Peace Officers Assn., said Howard may have kept
detectives that night from interviewing the guard who shot Orozco because
the guard was in shock.

But Novey said he wasn't aware of Howard fending off investigators from the
Fresno County Sheriff's Department and district attorney for three weeks.

"That's news to me," he said. "I sure didn't slow that down. Our protest
there was the way [management] handled our staff." Novey said Howard was
sent to the prison in the middle of the night to represent union members.
"It was the first ever shooting at a new prison. We make sure there's
counsel on the spot. These aren't everyday occurrences." Novey added that
Howard was "5-foot-3 and 115 pounds" and incapable of intimidating anyone.

But according to prison staff and corrections officials, the union attorney
was allowed unusual access to officers and official reports in the
immediate hours after Orozco was fatally shot during a 6 p.m. fight in the
dining hall.

Prison staff and corrections officials said Howard walked into a
lieutenant's office and obtained official reports before even the warden or
county investigators had a chance to see them. Howard refused to return the
documents and got into a scuffle with a captain who had to snatch the
reports out of his hand, prison staff and officials said.

"The union went in and started grabbing documents, and they ended up in a
tug-of-war over the documents," said Richard Ehle, who heads internal
affairs at the state Corrections Department.

He said that the union wanted immediate access to the documents and that
some prison staff objected. The staff wanted to complete its investigative
package, "but Howard wanted to start looking at documents immediately,"
Ehle said.

Ehle's unit is now investigating the scrap between the Pleasant Valley
staff and the union's attorney.

Questions About Slaying

Over the last three years at other prisons, the guards union has gained
access to confidential prison documents and prevented outside investigators
from questioning officers. State corrections officials halted probes of
officers at Pelican Bay State Prison and Corcoran State Prison after
objections by the union.

On the night of the Orozco slaying, seven investigators and a prosecutor
from Fresno County arrived at Pleasant Valley prison and found that union
representatives were already there. It was the first time the investigative
team had responded to a fatal shooting at the prison, which opened in
November 1994.

The team discovered that the union representatives had already surveyed the
incident scene, interviewed the officers who had witnessed the shooting and
reviewed copies of official incident reports.

When the investigative team tried to question those same guards about why
the gun post officer had used deadly force to break up a fight, the union
told team members they had to wait, they said.

"I could understand protecting the officer who fired the shots, but we had
other officers in the dining hall who we wanted to talk to and [the union
attorney] said 'no,' " recalled the county homicide detective.

"We kept trying and trying and they kept saying, 'We will, we will,' but it
took three weeks." Orozco was serving a nine-year sentence for drug dealing
when he was shot to death, the most recent fatal shooting of an unarmed
inmate in a California prison.

Orozco and the other inmates in the hall were not carrying weapons or
causing any serious injuries, according to official incident reports. No
staffer faced immediate peril.

Orozco had joined the fight late, if at all, various reports show. The gun
post officer, Bruce Brumana, didn't wait for fellow guards in the dining
hall to try to break up the brawl with batons or pepper spray. He never
fired a wood block warning shot. His first response was the most deadly
response.

The inmate whose life was said to be in danger--Brumana's stated reason for
firing the deadly shot--only had a scrape.

The state's shooting policy calls for an escalating use of force and limits
deadly firepower to situations in which one inmate poses imminent great
bodily harm to another.

Earlier this week, Corrections Director Cal Terhune said a departmental
shooting review board recently determined that Brumana had indeed broken
policy by using lethal force to break up the fight.

Terhune also confirmed that Pleasant Valley Warden Gail Lewis has argued
consistently that the shooting was proper. Lewis, who department officials
said Tuesday is on vacation, has been unavailable for comment.

Lewis has held firm to her position even though Lt. Patricia Newton, the
highest-ranking supervisor to respond to the shooting, took the unusual
step of confronting the warden with a dissenting view. Newton believes that
the gun officer made a grave mistake in using deadly force to break up a
routine fight.

Terhune said the review board's finding was made without talking to Newton.

The corrections director said he won't make a final decision on discipline
in the case until the Fresno County district attorney's office completes
its criminal investigation.

Moves Create Ripple Effect

The delay in the homicide investigation had a domino effect on corrections
investigators, stalling their own administrative probe of the shooting.

"We have an agreement with the district attorney and the sheriff that we
will not proceed until they have done their critical interviews, so we
backed off," said Brian Parry, head of the Corrections Department's Special
Security Unit.

"My guys were ready to do an administrative interview and we had to wait. .
. . I'm not sure why," Parry said. "After 15 days and longer, I was getting
edgy. Let's move this thing along." In a criminal investigation, the state
has the authority to prod officers to talk. Under government code section
3304(a), a warden can tell officer witnesses to cooperate with
investigators from the district attorney's office or the sheriff's
department. If they refuse, they can be suspended for insubordination.

In the past, Kings County prosecutors with jurisdiction over the Corcoran
prison have said they failed to look into the more than four dozen serious
and fatal shootings between 1989 and 1995 at the maximum security facility.

A recent independent study commissioned by state officials concluded that
two dozen fatal and serious shootings at Corcoran were not justified and
that the state's system for investigating and prosecuting prison shootings
had broken down.

A few counties, such as Del Norte, do conduct investigations of shootings,
and in Del Norte's case, authorities say they have encountered union
resistance. In one shooting at the Pelican Bay prison, a sheriff's
investigator said he threatened to arrest a union official for interfering
with his questioning of a guard who wounded an inmate.

Fresno County Dist. Atty. Hunt said one of the reasons his office didn't
avail itself of section 3304(a) was because the investigators were new to
the process. It was the first fatal shooting at the 4-year-old prison.

"We only have one prison in the county, and this is the way we did it.

And if others think we made a mistake, it's my humble opinion they are
engaging in Monday morning quarterbacking. However, I will accept
responsibility," Hunt said.

The sheriff's office said it had finished its work two months ago, but in
now wants to talk to Newton, who told The Times this week that she thought
the shooting was unjustified.

Sheriff Steve Magarian was unavailable for comment.

Hunt said that his office hasn't decided whether the actions of Brumana
warrant criminal prosecution. "We haven't made that judgment. I frankly
don't know enough about it yet to say if it's criminal or not."

Checked-by: Richard Lake