PRISON INQUIRY CALLS SHOOTINGS UNJUSTIFIED

Probe: Commission finds 24 of 31 serious or fatal Corcoran incidents
unwarranted, and says state's system of investigating use of force on
inmates has broken down.

SACRAMENTO--Two dozen fatal and serious shootings of inmates at Corcoran
State Prison were not justified, and the state's entire system for
investigating and prosecuting prison shootings has broken down, an
independent panel concluded in a report released Wednesday.

The three-member panel, commissioned by state officials last summer during
legislative hearings on violence at the San Joaquin Valley prison, issued a
strong denunciation of the Department of Corrections, its use of deadly
force and the internal investigations and oversight boards that have
routinely determined the shootings to be justified.

The unprecedented outside review focused on six years of shootings at
Corcoran but its conclusions have implications for maximum-security prisons
statewide.

The panel reviewed 31 deadly and serious shootings at Corcoran from 1989 to
1995 and found the use of deadly force was not justified in 24 of the
cases. In many instances, guards shot inmates engaged in routine
fistfights, killing seven of them. Until recently, the state has doggedly
defended its shooting practices.

Sen. Richard Polanco (D-Los Angeles), who co-chaired the recent legislative
hearings, said the panel's findings proved that state officials had shirked
their responsibility to watch over Corcoran.

"It took an outside group to verify that we had a totally uncontrollable
situation at Corcoran as it relates to the shooting policy," he said. "We
had a shooting gallery going on at Corcoran and the blue-ribbon panel
basically verified it. That's incredible." State Corrections Director Cal
Terhune said the findings were troubling but a necessary step to reform his
department. He said the report could open up the state to possible legal
liability in recent and older shootings.

"There is no way to do it without us taking a risk. And that's the only way
you're going to change something," Terhune said.

In recent weeks, the department has referred five of the fatal shootings at
Corcoran to the Kings County district attorney for possible criminal
prosecution.

Local prosecutors say that so much time has passed since the shootings that
they are unsure if any charges can be brought. The guards will not face any
departmental discipline because of the time lapse.

The Select Shooting Review Panel was made up of two former police chiefs
and a retired FBI agent appointed by Terhune after stories in The Times
highlighted serious problems with the department's shooting practices and
the way official watchdogs--from local prosecutors to the state attorney
general's office--scrutinized or defended the shootings.

"If these are cases that rightfully should have been forwarded at an
earlier date, then we are troubled that they were not forwarded for
prosecution," said Rob Stutzman, spokesman for Atty.

Gen. Dan Lungren. Stutzman said the attorney general's office would offer
assistance to the local district attorney now reviewing the shootings.

Oversight Found Full of Problems In its 53-page report released Wednesday
under a Public Records Act request, the panel found that oversight of the
shootings--both the initial internal investigations and later inquiries by
shooting review boards--was riddled with problems.

Rather than hold a guard responsible for a bad shooting, the inquiry found,
the department asked local prosecutors to instead bring charges against
some of the inmates for fighting.

"As a result, there is neither fact nor perception that such incidents are
scrutinized by anyone outside of the prison system and no one is required
to render a decision concerning the legality of a shooting," the panel
determined.

The three-member panel also found that guards did not understand what
situations dictated the use of deadly force and that the policy on such
force was poorly written.

The panel members were not available for comment Wednesday.

Their report, which weighed each shooting against state law on deadly
force, did not spell out the flaws in the 24 shootings. It also did not
spell out which specific shootings were flawed.

Terhune said his reading of the panel's work showed that the shootings were
found not justified for two major reasons: The actions of the prison guard
were not warranted under the state penal code, or less lethal options were
not exhausted before deadly rounds were fired at inmate combatants.

Terhune said shooting practices have varied from prison to prison, with
some maximum security lockups all but forbidding deadly force to stop
inmate fights and others giving the green light to shoot.

The department is in the midst of overhauling its policy on deadly force to
forbid guards from firing shots to break up fistfights or melees.

"That's what I'm zeroing in on," Terhune said. "To make sure the policies
give the clearest possible guidance to the officers on the line." He added,
"We need to train with the same voice throughout the state." Eight Officers
Facing Trial The panel looked at seven fatal shootings and 24 serious
woundings of inmates at Corcoran.

The use of force was found justified in only five of the 31 shootings; one
shooting was deemed accidental and no opinion was reached in one.

Among the incidents examined was the 1994 death of inmate Preston Tate, who
was mistakenly killed by a bullet intended for his rival during a
recreation yard fight.

The Tate case, the subject of a four-year FBI probe at Corcoran, has led to
a federal indictment of eight officers accused of setting up fights for
"amusement and blood sport." A trial is scheduled for next year. Earlier
this month, the state agreed to settle a civil rights lawsuit filed on
behalf of Tate's family for $825,000.

"Everything we were doing at Corcoran from a shooting standpoint was
wrong," said former officer Richard Caruso, one of five whistle-blowers who
took allegations in the Tate case and other shootings to the FBI in 1994.

"It's a shame that the line officers are the only ones held accountable.
What about the administrators and top government officials who approved the
shooting practices at Corcoran and other prisons? To this day, they've
gotten off scot-free." Sean Walsh, Gov. Wilson's spokesman who in the past
has defended the administration's oversight of Corcoran and other prisons,
said the independent review was a healthy vetting.

"We believe that we run a very effective correctional system but we also
believe that it is not perfect," he said. "And we are certainly willing to
conduct self-examination and outside examination of our policies and
procedures to ensure that staff and prisoners are afforded all the
protections under law.

"Sometimes you don't like the results you get, but you need to have honest
information to make good policy changes." Officials of the state prison
guards union could not be reached for comment Wednesday.

California is one of a handful of states in which guards carry high-powered
rifles inside maximum security units. Most states limit firearms to a few
guard towers that ring a prison. Since 1989, The Times found, 39 inmates
have been shot to death and more than 200 seriously wounded by guards
firing bullets to stop fistfights and melees--a practice unheard of in
other states.

It is state policy for guards to issue a verbal command to stop fighting
and then to fire a wood or rubber block warning shot. If a fight continues
and one inmate poses "imminent great bodily harm" to another, gunners are
trained to chamber a live round and fire at the aggressor's torso.

But a Times review of shootings over the past decade--both at Corcoran and
prisons statewide--reveals that officers have responded with deadly force
even in the absence of inmate weapons or injury. Some guards didn't fire a
warning shot before the fatal shot. In at least 10 cases, the bullet missed
the intended target and killed or injured the wrong inmate.

The department has disciplined only three officers over the past several
years in shootings. And not a single gunner has been prosecuted by a local
district attorney's office since 1994.

Critics argue that changes in the state's shooting policy--changes
undertaken in 1994 amid the FBI investigation and critical newspaper
stories--have not gone nearly far enough. They say the practice of shooting
and killing inmates to prevent fights from turning deadly is illogical and
runs counter to the methods of every other state.

Corrections officials now concede that the internal review boards that
judged fatal shootings were rubber stamps made up of high-ranking officers
who often worked at the same prison where the shootings took place.

The independent panel also found shortcomings with the review boards.

"When evaluating shooting incidents, shooting review boards .

. . give little or no attention to the question of whether the use of
deadly force complies with the law," the independent panel concluded.

"Shooting incidents are investigated more for the purpose of determining
inmate violations than for the purpose of evaluating whether the use of
lethal force" met provisions of the penal code, the report states.

Larry Crouch, assistant Kings County district attorney, said that so far
five fatal shootings have been sent to his office for review.

But Crouch cautioned that because of the age of the cases, the
investigative trail may be cold.

"If you're looking at [these cases] under the theory of excessive force,
the statute of limitations might have expired." Terhune said he expected
that all of the 24 questionable shootings eventually would be referred to
the district attorney.

He stressed that not all of the panel's recommendations--which include more
training and finding alternatives to lethal force--will necessarily be
adopted.

He underscored that the department has already begun major steps to
restrict the use of deadly force, provide more training and beef up
oversight and investigations of the shooting.

The three-member panel, appointed by Corrections Department officials,
consisted of retired Oakland Police Chief George Hart, retired Brookins,
Ore., Police Chief Jack McDonald and former FBI Agent Charles Latting.

Checked-by: Richard Lake