Mc Gowan’s Trial Over, Tribulations Continue…As Do Supporters

Jun 8th, 2010 By pacovilla Posted at PacoVilla Forums by Indian Chief On the door steps of the court house I talked with past CIM President Marty Aroian, he has first hand knowledge of the case as he helped represent most of us during this ordeal. I will let his words say it “ALL.” As I rode the train back from the Federal Court this afternoon, I contemplated what I wanted to say here and how best to say it. People who know me often ask:After so many years, as a Correctional Officer are you still opposed to the death penalty?” And, “Why?” I’ve had many answers to this question, some flip, some more reasoned but today I’ve got a one word answer: Mc Gowan. No, he wasn’t sentenced to death, but his sentence was severe enough I couldn’t help wonder if it wasn’t a close second. Let me back up. I assume a few things that perhaps I shouldn’t, because I’m writing something intended for a specific audience: CIM, CDCR Correctional Officers and their associates. But for the benefit of those who may read this and who are unfamiliar with the circumstances: Robert Mc Gowan was a Correctional Officer at the California Institution for Men. In 2002 he and more than a dozen other officers were assigned to a transport and escort 9 inmates suspected of attacking two Correctional Officers earlier that same day. Today, 8 years later, Robert Mc Gowan was sentenced to 51 months in a Federal Prison for violating the civil rights of two of the inmates who were escorted. These two inmates alleged that Mc Gowan and others violently threw them (while shackled) to the ground from a transport vehicle and then beat them. Initially over a dozen officers were suspected of participation as either assailants or silent witnesses. Some slight abrasions were noted just hours after this alleged attack, but no injuries consistent with such a beating were evident to medical examiners. I was not there, but I have had 8 years to review the evidence, interview many who were and I represented most of the accused at one time or another. I am as convinced of their innocence as I am of anything I have ever believed to be true. Unfortunately, I was not a juror in this case. Fortunately the initial trial judge threw out each and every one of the jury verdicts of the three defendants they brought to trial. Then the U.S. Justice Department appealed the judge’s action and the Circuit Court reversed on two of the charges with respect to Mc Gowan and sent only his case back to the trial court for sentencing. In an unusual twist, the Circuit Court, (fearing leniency) specifically forbid the original trial judge from presiding over the sentencing. Another judge, less experienced and unfamiliar with the evidence presented at trial was awarded this dubious and difficult task. In the interest of providing federal judges some insights beyond the cold statutory sentencing guidelines, the Probation Department evaluates the evidence, the charges, criminal history, defendant’s demeanor, and all the other relevant issues pertaining to the individual facing punishment. In this case, similar to the judgment of the original trial judge, the Probation Department’s recommendation was “No Jail Time.” The appeals court upheld two of the charges so some sentence was necessary and the Probation Department held that a period of home detention and probation was more than adequate. Judge Wright, in a statement laced with as much anger as with erroneous assumption disagreed. Judge Wright was Wrong! America is proud of its judicial system. We arrogantly profess to the world that ours is the best to be found on the planet. If this is the best mankind can do, then I respectfully submit that we are still not qualified to pronounce a sentence of death to anyone, even in the most heinous of cases. Not yet. Today, I went to court, accepting that the best judicial system in the world made an error when Robert Mc Gowan was convicted, but still believing that some justice was possible. If the court took into consideration the dubious case put on the by prosecution, that the very experienced federal judge who presided over the entire case and heard all the evidence threw out every count against every defendant, that only Mc Gowan stood where, if the charges were true, many would be correctly standing, that other than this instance he had an admirable service record, that he is a devoted family man and a peaceful member of the community and that more than 50 letters from co-workers and friends implored the judge to tread lightly if he could not find the courage to dismiss, there was still reason to believe the devastating effects of the ruling could at least be corrected. This did not happen. The best judicial system in the world, failed. Why did the judge ignore the Probation Report, the letters from supporters, the clear evidence that in its worst light this was simply a fine young man’s uncharacteristic mistake? Because the United States Justice Department secured an informant’s declaration stating that Robert Mc Gowan committed crimes unrelated to those he was convicted of. No direct evidence was presented, not even the informant’s testimony. The informant, by-the-way, is an admitted gang member and career criminal who has served many years in prison. With no other evidence to the contrary, Mc Gowan was sent to prison today because of something he was never even formally charged with, had no real opportunity to refute and had that nothing to do with the case at hand. In 2003, newly appointed Corrections Secretary Rod Hickman declared to the California State Senate that there was a “pervasive Code of Silence” operating within the California Department of Corrections and a McCarthy Era like witch hunt for sinister officers has continued ever since. One regrettable, careless, false statement made for personal political gain has not only forever tainted a profession and this Department, but it has contributed mightily to Mc Gowan’s prosecution, conviction and sentencing. The only silver lining in all of this is that the fight to win back his freedom, win back his reputation and win back his right to raise his family and shower his wife with richly deserved adoration is not over. Tonight, Mc Gowan will spend the first of many unfortunate nights in prison, but his legal team, sponsored by the good and charitable dues his brothers and sisters in law enforcement pay faithfully is working to secure a new trial upon appeal. There is a lesson in all of this for the rest of us. Do not let expediency and/or personal fear for the consequences allow you to compromise your resolve. Do not speculate about your partners’ involvement, heavy-handedness or demeanor. One person, who wears our uniform, related to the judge that Mc Gowan had a reputation for being heavy-handed. This person did not even say he had first hand knowledge. He only reported a rumored reputation and that speculation carried with it more influence against Mc Gowan than the 50 letters from others who wear the same badge who said otherwise. One person’s rumor is not a reputation, 50 co-workers consistent opinions is., But the hint of a rumor can easily be more powerful and damning. I worked in our Department for a quarter century and I did so honorably. In all of that time, I never witnessed anything thing that remotely resembled what Secretary Hickman called a “Pervasive Code of Silence.” But perhaps it is time we learned to stop talking about each other as if what we said would not have any real effect. I know two young children who will be devastated for a very long time.