Chino prison guard Robert McGowan was sentenced to four years and three months in prison for violations of federal laws prohibiting a prison guard from depriving an inmate of his constitutional right to be free of cruel and unusual punishment.

The conduct at issue was a 2007 incident where McGowan allegedly pushed two hand-cuffed and shackled prisoners out of a truck, causing them to suffer bruises and cuts. The push was apparently in retaliation for an earlier incident when inmates fought with prison guards in a chow hall.

At the sentencing hearing, the U.S. Attorney’s office argued that McGowan deserved a high term because he has also been accused of using methamphetamine with prisoners and smuggling in drugs for inmates at Chino. These arguments were based upon the claims made by another inmate who claimed to have seen such conduct by McGowan. However, the inmate did not testify at the sentencing hearing and, once McGowan was sentenced to 51 months in prison, he appealed the sentence.

In McGowan’s appeal (U.S. v. McGowan, 2011 DJDAR 1072), McGowan argued that the inmate’s claims of drug use and smuggling were false or unreliable and were the basis for the sentence. McGowan pointed out that since the inmate never appeared in McGowan’s court for cross-examination (the inmate did submit to an FBI interview and did appear in another trial), the sentencing judge never had the chance to weigh the credibility of his claims by observing the inmate. Moreover, McGowan argued, the inmate had little to lose by implicating McGowan.

The Ninth U.S. Circuit Court of Appeals, with Stephen writing, agreed. The Court found the allegations sufficiently unreliable and that the allegations were clearly a factor in McGowan’s sentence, as it appeared that the district judge did rely upon the inmate’s allegations in imposing the sentence.

The case was interesting from the beginning. After the allegations of abuse were made, state officials refused to prosecute McGowan. The U.S. Attorney’s office then, apparently in response to well-publicized criticism by inmate advocacy groups, took over the case and filed both civil rights and conspiracy charges against McGowan.

The case was tried before U.S. District Judge Manuel Real, age 88, who has himself been the target of formal reprimands for his conduct on the bench. McGowan was then found guilty, which was something of a victory over the “code of silence” that renders mute any accuser of police misconduct as well as the “disturbing ease and frequency with which jailhouse informants provide false testimony,” which one case noted.

Real, however, granted McGowan an acquittal after the verdict, explaining the case “was at best an assault and battery.”

The acquittal was then appealed and Real was reversed. Sentencing was then assigned to a different judge, who wrongly considered the claims of the absent inmate about McGowan’s use of methamphetamine and drug smuggling.

The Ninth Circuit Court of Appeals then vacated the sentence and sent the case back down to the district court (trial court level) for further sentencing.

Greg Hill is a criminal defense attorney in Torrance, California. He graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A. 1994) and Loyola Law School (J.D. 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

Greg Hill is a criminal defense attorney in Torrance, California. He graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A. 1994) and Loyola Law School (J.D. 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

Author Bio: Greg Hill is a criminal defense attorney in Torrance, California. He graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A. 1994) and Loyola Law School (J.D. 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

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