Corrections Officer Returned to Duty

Posted by Leo Tamisiea

Santa Clara County Corrections Officer Randy Robinson was returned to work at the main jail in San Jose last month ending a 27-month ordeal. The officer was reinstated by order of Arbitrator Alexander Cohn, who overturned a termination decision by the Department of Corrections (DOC) and replaced it with a written reprimand.

In October 1999, an inmate escaped from the fourth floor of the main jail while Robinson and another officer were on duty. The inmate used hacksaw blades that had been smuggled into the jail to cut the bars in his window and then forced the window glass out of its frame. The inmate escaped down a rope of jail sheets.

Originally, no action was taken by the DOC against either of the officers who were on duty the night of the October 1999 escape. It was only after another escape occurred using the same technique occurred on a different shift six months later, that the DOC then investigated both escapes.

Based upon the officers’ answers to questioning by IA about the October 1999 escape, the department decided that both officers were lying about their activities on that night and decided to impose termination for 12 different violations of county rules and DOC rules and regulations.

However, the DOC waited until five days before the one-year statute of limitations expired (see, Government Code § 3304) to notify the officers that it intended to terminate them.

At the Skelly pre-disciplinary hearing, new information was presented by this author. I also requested that DOC interview other witnesses who possessed exculpatory information. But, instead of following up on any of the new information presented (a fact admitted by the hearing officer at the arbitration), the Skelly hearing officer simply rubber-stamped the original investigation and termination.

A six-day arbitration ensued. The county claimed that the officers lied about being inside the high-security module where they were assigned for the three hours between midnight (when the department said the escape occurred) and 3 a.m. (when the officers reported the escape). The department also claimed that the officers falsified the logbook and never made the cell inspections recorded during those three hours.

The department’s case ran into serious problems because it centered on the conclusion that the escape occurred at two minutes after midnight. In support of its theory, the DOC offered the testimony of an inmate who claimed to have been watching the whole incident. The DOC also offered two months worth of tape recordings of the escaped inmate’s phone calls from the payphone in the module to his associates outside, as well as those of a trustee to the same associates planning the escape. As a side note, it was very unfortunate that these tape recordings were not listened to until after the escape occurred. Had they been, circumstances may have been quite different.

Ultimately, the county’s case failed because the defense confronted the department witnesses with a sheriff’s office criminal report which contradicted the statements in the DOC Internal Affairs report. Also, the defense used a Spanish translation of a key phone call on the night of the escape, differed from the DOC translation, as well as cell phone records that absolutely contradicted the conclusion that the inmate escaped at two minutes after midnight.

The department also based its termination case upon the conclusion that, after the escape, orange sheets hung from the missing fourth-floor window to the ground for three hours in the rain and that (1) a DOC sergeant walked within 15 feet of them without noticing them, (2) that no one noticed the sheets during the San Jose PD shift that occurred next door to the jail, and (3) that the DOC bus driver and guard failed to notice the sheets despite stopping their bus in the parking lot next to the sheets while on their way to the Elmwood Jail facility.

But, the county’s case argument about the sheets fell apart when a DOC sergeant testified that the sheets (which the department claimed had been hanging out of the window for three hours in the rain) were dry when he touched them just after the escape was reported around 3 a.m. Also, the DOC bus driver testified that he did not see the sheets hanging down four floors when he left the main jail after midnight, but that they were plainly visible from over a block away when he returned to the jail after the escape was reported.

The department had further evidence problems when it was discovered that no photos were ever taken of the sheets hanging out of the window, or of the intact window lying on the sidewalk sixty feet below. The videotape was taken the night of the escape also contradicted the conclusions in the DOC report.

In separate allegations, the DOC charged that the officers falsified the log and inspections book. But the defense successfully proved that a nurse made a diabetic call logged at 2:32 a.m. in the module, which was recorded in the middle of the claimed false entries, and that the nurse was never interviewed by the department, and no claim was ever made by the county that the nurse’s entry was false. The DOC also alleged impropriety in the use of intercom inmate checks, but the defense provided testimony from several DOC officers that intercom welfare checks were common during this time period despite what the department claimed.

In the end, the arbitrator found that the inmate who testified for the county was not credible in his time recollections or in his claims that these two officers always failed to do welfare checks since the defense showed evidence that this was the first time these two officers had ever worked together in this module. Also, the inmate’s claims that other inmates watched the escaped inmate climb down the wall were found unbelievable because the evidence showed that it was not possible to see the wall below the escaped inmate’s cell from any other cell in the module. The arbitrator also had problems with the department’s claim that the officers had “poor memories” of the night of the escape despite the county’s own failure to interview them for six months. Also, these young officers had only three weeks on this job after graduation from the academy when the incident occurred.

The arbitrator found no just cause for the termination of these officers and ordered them reinstated with full back pay and benefits. The arbitrator did order a written reprimand for a minor violation of DOC post orders. Officer Robinson was represented by this author of Rains, Lucia & Wilkinson.