Judge won’t dismiss Atwater inmate’s murder case

McClatchy Washington BureauJuly 11, 2014 

— A federal inmate accused of murdering Correctional Officer Jose Rivera at U.S. Penitentiary Atwater has failed in his efforts to dismiss the indictment or exclude the death penalty.

But in a new ruling, U.S. District Judge Philip M. Pro also acknowledged some validity to inmate Joseph Sablan’s claims about dangerous conditions at the maximum security prison in California’s San Joaquin Valley.

“The evidence ... shows that some inmates and personnel felt concerned for their safety,” Pro stated in his July 10 ruling, citing evidence “that USP Atwater had an increased amount of illegal alcohol and weapons in the years prior to the attack on Officer Rivera.”

Sablan is charged with first-degree murder in the June 20, 2008, attack on Rivera, a 22-year-old Navy veteran and San Joaquin Valley native. Sablan’s co-defendant, James Ninete Leon Guerrero, pled guilty earlier this year and was sentenced to life in prison without parole.

Sablan still faces a potential death sentence. As a defense, his attorneys argue that U.S. Penitentiary Atwater’s former managers failed to follow federal Bureau of Prisons’ policies and allowed an unusually dangerous environment to fester.

In his 12-page decision Thursday, Pro concluded “Sablan’s arguments do not meet the extremely high standard of outrageous government misconduct” required to have charges dismissed.

“Evidence indicates that USP Atwater had a rise in contraband alcohol and weapons, and a decrease in prosecutions, but the evidence does not indicate discipline at USP Atwater ceased altogether,” Pro wrote.

At the same time, Pro noted, the jury may eventually “consider to what extent the prison’s conditions contributed” to Sablan’s attack on Rivera. This could play a particular role in sentencing, as Sablan does not deny the attack that was filmed by the prison’s security cameras.

Sablan’s defense attorneys declined comment Friday.

The ruling Thursday came nine months after Sablan’s defense attorneys filed their motion to dismiss the charges or exclude the death penalty.

The defense was relying on what is sometimes called the “outrageous misconduct” defense first suggested by the Supreme Court in 1973. In 2008, for instance, an appellate court cited the defense in dismissing financial charges against a Nevada man after prosecutors failed to turn over 650 pages of potentially helpful information.

Still, the outrageous misconduct defense can be a hard sell.

“The warden did not kill Officer Rivera, nor did the mere presence of alcohol or illegal homemade weapons,” federal prosecutors wrote in response to Sablan’s motion. “The defendants did.”

The defense motion, with its accompanying evidence, remains under seal.

Some of the key points spelled out in 44 defense exhibits that included charts, photographs and witness declarations were summed up by Pro.

Without citing specific statistics, Pro noted the evidence showed “a rise in contraband alcohol and weapons, as well as an increase in violence, among the inmates” in the two-and-a-half years prior to Rivera’s death.

The evidence further showed that the U.S. Attorney for the Eastern District of California “received more than triple the referrals from prosecution from USP Atwater as in previous years, but declined nearly two-thirds of those prosecutions.”

“The government’s response of ‘so what?’ to Defendant Sablan’s contentions does not acknowledge the gravity of the situation,” Pro stated.

Since the 2008 murder, the Atwater prison has been placed under new leadership, and various safety and policy reforms have been instituted.

According to the Bureau of Prison’s Annual Prison Social Climate Survey, obtained by McClatchy under the Freedom of Information Act, nearly 70 percent of Atwater’s staff gave favorable ratings in 2012 to the institution’s operations. In 2008, the survey showed, only about 42 percent gave favorable ratings.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10.

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