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San Francisco-Two former California prison guards convicted in 2002 of conspiring to solicit nine inmate beatings and stabbings have yet to serve a day of their six-year and seven-year sentences handed down at the end of a once-lauded civil rights case. The costly five-year investigation-which triggered the downfall of the former state prisons director Edward Alameida in 2003-included a year-long grand jury inquiry, and dozens of inmate and guard witnesses. The U.S. Department of Justice presented a national award for the winning prosecution in 2003, and state lawmakers pressed for stronger whistleblower protections to end the code of silence among some officers who refuse to cooperate with misconduct investigations. But as late as April 12, the office of San Francisco U.S. Attorney Kevin Ryan had not initiated efforts to call either 28-year veteran Sergeant Michael Powers nor corrections officer Jose Garcia to start serving their terms. Both men were free on bail during their trial and appeal. Just days after The National Law Journal began inquiring about the delay, the prosecution on April 13 filed a notice with the U.S. District Court for the Northern District of California advising of the potential need for a new sentencing hearing, and saying that it would file a memo this week on possible future hearing dates after consulting the defense. The April 13 filing stated that neither man had to be present at the hearing, indicating that the prosecution will not seek immediate surrender. Six months, and counting The 9th U.S. Circuit Court of Appeals upheld the pair’s sentences and convictions for conspiracy to violate the civil rights of inmates in June 2005. The U.S. Supreme Court rejected a defense request for review on Oct. 11, 2005. Six months later, there has been no call from the government. Luke Macaulay, spokesman for Ryan’s office, denied that the case had slipped through the cracks. “Generally there are a lot of actors involved in the process and a lot of preparation that goes into sentencing,” he said. “It is not unusual that it would take some time.” Melinda Haag, the former prosecutor who won the conviction in 2002 before leaving for Orrick, Herrington & Sutcliffe’s white-collar defense team, said: “Obviously I’m disappointed. These men were found guilty of seriously abusing inmates four years ago and have not yet served a day of their sentences. The [inmates] who took great risks in testifying for the government against the defendants have served every day of those four years. It doesn’t seem right.” FBI Director Robert Mueller, then the U.S. attorney in San Francisco, made civil rights prosecutions a priority in the office in the late 1990s, and the Powers/Garcia prosecution became the leading case in that effort, according to Haag, who headed the unit at the time. Haag and a second prosecutor in the case left the office shortly after the 2002 sentencing, and the case was reassigned. Powers and Garcia were convicted of abusing inmate civil rights by soliciting powerful prisoners to stab and assault weaker inmates, usually those convicted of sex offenses, at California’s notorious maximum-security Pelican Bay State Prison, according to the government’s 2003 request to deny the men bail. Dennis Riordan, Powers’ attorney, when asked about the cause of the government’s six-month delay in requiring the men to surrender, replied, “You know as much as I do.” Questionable trial testimony by several guard witnesses helpful to the defendants prompted a separate state investigation into potential perjury. Almeida resigned amid allegations that he bowed to pressure from the state’s powerful prison guards’ union to shut down the perjury inquiry. Garcia was convicted of setting up an assault on a convicted child molester and “using it as an excuse to fire a 37mm Gas Gun at the inmate to further terrorize him,” according to a 2002 government press release. One guard testified that the day before an inmate stabbing, Powers told him he wanted the guard to “look away” while the inmate was stabbed and not fire any shots in response, according to the government statement. Instead of investigating, Powers allowed inmates to return to their cells without recording their identities or searching them.

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