By Bob Egelko
The San Francisco Chronicle
SAN FRANCISCO — A federal appeals court has reinstated the brutality convictions of a Southern California prison guard for yanking two shackled inmates from a van and throwing them to the ground headfirst.
The Ninth U.S. Circuit Court of Appeals in San Francisco overruled a judge who had thrown out the jury convictions and removed him from the case. The court said another judge should sentence defendant Robert McGowan.
McGowan, a guard at the California Institution for Men in Chino San Bernardino County, was convicted of inflicting cruel and unusual punishment on inmates Carlos Villa and Joseph Waller, two of the few such convictions in the state in recent years.
The inmates were among a group of prisoners transferred to another unit in shackles in May 2002, hours after a reported brawl between inmates and guards.
McGowan, who was removing inmates from the van, pulled Villa and Waller out and threw them to the ground, where they landed on their heads and suffered minor injuries, prosecution witnesses said. Waller also said McGowan had punched him in the head and later smashed his head against a wall.
McGowan denied assaulting either man. A federal jury in Los Angeles convicted him of the attacks in October 2007 and also convicted McGowan and two other guards, Thomas Ramos and Hector Flores, of conspiring to cover up the incident by submitting false reports.
U.S. District Judge Manuel Real overturned the verdicts a month later and ordered the charges dismissed, saying prosecutors had failed to produce enough evidence that the guards were guilty. He issued only a brief written ruling that did not explain his conclusions.
On Friday, a three-judge appeals court panel said the evidence showed that McGowan had attacked the prisoners and that the jury could conclude that he had intended to harm them.
Judges Andrew Kleinfeld and Stephen Trott and Chief Judge Alex Kozinski, all Republican appointees, said Real had commented that the case was, at most, an assault that should have been prosecuted in state court. That is a decision for prosecutors, not judges, the court said.
Because Real “may have difficulty putting his previously expressed views aside,” the court said, a different judge should sentence McGowan.
McGowan’s lawyer, Paul DePasquale, said he disagreed with the ruling and was surprised by Real’s removal from the case, which prosecutors hadn’t requested.
The U.S. attorney’s office did not seek to reinstate the other guards’ convictions.
Copyright 2009 San Francisco Chronicle