Lawyers say Merced area jury pool tainted

Trial may move in Atwater guard slaying case

Sun-Star Washington BureauMarch 29, 2013 

— The proliferation of Central Valley prisons has poisoned the region's potential jury pool, according to defense attorneys for the two inmates accused of killing a U.S. Penitentiary Atwater guard in 2008.

Citing past acquittals of prison guards accused of wrongdoing, as well as the clout of the state prison guards' union, defense attorneys in new legal filings allege that a "dysfunctional" relationship now interferes with "the jury pool and justice" throughout the valley. The assertion sets the stage for an anticipated formal request to move trials scheduled to take place next year.

"There is a significant demographic bias in the Eastern District of California that manifests itself in litigation involving correctional officers and the operation of prisons," attorneys for Joseph Cabrera Sablan and James Ninete Leon Guerrero asserted in a filing Thursday.

As evidence, the defense attorneys cited the 2010 acquittal of former Atwater lieutenant Eric A. McEachern on charges of beating an inmate with a flashlight, as well as a 2003 case in which several guards were not found liable for setting up the rape of an inmate at the California State Prison at Corcoran.

A jury pool "with this history" must be carefully evaluated in determining whether a change of trial venue is necessary, the defense attorneys argue.

The federal case involves a call for the death penalty and has the attention of top Justice Department officials. Sablan and Leon Guerrero are accused of killing 22-year-old correctional officer Jose Rivera.

Citing prison videotape and eyewitnesses at the high-security Atwater prison, a Federal Bureau of Prisons' Board of Inquiry said Leon Guerrero tackled Rivera and restrained him, while Sablan stabbed the Navy veteran repeatedly with a weapon similar to an ice pick. Both inmates appear to have been intoxicated on prison brew at the time of the June 20, 2008 killing, investigators said.

After a series of legal maneuverings including an appeal over public access to a mental competency hearing sought for Leon Guerrero, U.S. District Judge Philip M. Pro in early March set a July 14, 2014 trial date for both men.

Federal cases are customarily tried in the judicial district in which the alleged crime occurred. For the Atwater prison, this is the Eastern District of California, served by major courthouses in Sacramento and Fresno.

The Federal Rules of Criminal Procedure permit a trial to be changed if a judge concludes "so great a prejudice against the defendant" exists that a fair and impartial trial is impossible. In deciding, the judge looks at issues such as whether pre-trial media coverage is pervasive and inflammatory.

Expert witness hired

The defense attorneys representing Sablan and Leon Guerrero could not be reached to comment, but their thinking is spelled out in the latest court documents.

The attorneys, Richard Novak and Salvatore Sciandra for Leon Guerrero, and federal defender Tivon Schardl for Sablan, have already hired an expert witness to help make the case for jury pool bias. Media coverage is one of the potential bias problems.

"The other problem is the existence of a significant bias in the community that arises out of the Eastern District's saturation by local, state and federal correctional institutions and industries serving those institutions, their employees and the families of the employees," the defense attorneys wrote.

The Fresno Division of the Eastern District is home to 20 state and federal correctional facilities and three large county jails, the attorneys noted. The Sacramento Division includes 11 state and federal correctional facilities, as well as the headquarters of what the attorneys call the "large and powerful" California Correctional Peace Officers Association.

"I've never heard of anyone asking for a change of venue based on that," Joe Baumann, a representative of the association, said in an interview Friday, adding that it sounded like a nonsensical argument.

Bauman noted that Rivera was a federal and not a state corrections officer, and said, "We haven't done any sort of PR push on the case."

In the latest filing, defense attorneys shed further light on the case that they will be making, including allegations that Atwater prison officials "knowingly tolerated the manufacture, sale and consumption of alcohol by inmates" and an allegation that the grand jury was presented with "materially false testimony" concerning the inmates' motives.

Sun-Star Washington Bureau reporter Michael Doyle can be reached at mdoyle@mcclatchydc.com or (202) 383-0006.

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