On April 29, 2008 the Public Safety Committee of the California State Assembly will conduct hearings on proposed legislation intended to gut the rights of criminal defendants to obtain police officer misconduct information hidden in their personnel files.
Below is my letter to Assemblyman Solorio in opposition to that legislation.
April 5, 2008
Assembly Member Jose Solorio
Public Safety Committee of the California Assembly
State Capitol
1020 N Street, #111
Sacramento, California 95814
RE: AB 2377 - Custodial Records; personnel records - OPPOSE
Dear Assemblyman Solorio:
I am a San Diego criminal defense attorney and civil rights litigator. I urge you to oppose Assembly Bill 2377.
I write to remind you of how Evidence Code sec. 1043 et seq. came to be. As time goes on our memories of the vast and widespread misconduct in Los Angeles which ultimately prompted such important and necessary legislative action fades. I am here to remind you because history repeats itself.
The following is an excerpt from “Firing a Federal Prosecutor - The Isla Vista Connection" by Bob Potter, coauthor of "The Campus by the Sea Where the Bank Burned Down," an official account of the 1970 riots in Isla Vista. This give you a short synopsis of the serious misconduct perpetrate by then Los Angeles County Sheriff Peter Pitchess, and how he and his cohorts were able to destroy a fine federal prosecutor and quash all allegations of misconduct. We cannot let this happen again.
THE PRECURSOR TO THE PITCHESS STATUTE
“Robert L. Meyer was appointed U.S. Attorney for Los Angeles by President Nixon in May 1970. An active Republican, former campaign manager for U.S. Senator George Murphy, and nominee for the state Assembly, he was immediately faced with several explosive and politically controversial cases involving civil rights violations and alleged police misconduct. These included the “mistake killing” of two Mexican nationals by Los Angeles police officers, the killing of L.A. Times newsman Ruben Salazar during a riot in conjunction with the Chicano Moratorium protests, and finally, widespread charges of gross misbehavior by L.A. County Sheriff’s officers during the June 1970 disorders in Isla Vista.
“Despite strong pressure from L.A.’s elected officials, including Mayor Sam Yorty, Sheriff Peter J. Pitchess, and Police Chief Edward M. Davis, Meyer’s office pursued these allegations aggressively, convening federal grand juries to investigate the charges. In March 1971, five Los Angeles police officers were indicted by the grand jury, including three on charges stemming from the “mistake killing,” one for abetting a burglary, and one for forcing a female suspect to disrobe. These indictments ignited a huge political furor. In Salazar’s case, a coroner’s inquest ruled the death a homicide, but the police officer escaped prosecution, and no indictments were issued.
“It was the Isla Vista cases, however, that brought about Meyer’s downfall. More than 400 reports of police misconduct—including beatings, break-ins, false arrests, and sexual molestation?—?had been collected from Isla Vista residents. In May 1971, indictments were returned by a federal grand jury in Los Angeles against an unnamed number of law enforcement officers, members of the L.A. County Sheriff’s Special Enforcement Branch, and the Santa Barbara County Sheriff’s Office. With the indictments still under seal, Pitchess, Yorty, and Chief Davis all spoke out, with the latter warning that “an ill wind is blowing from Isla Vista.” Sheriff Pitchess flew to Washington, D.C. and met on June 3 with Attorney General John Mitchell. Subsequently the indictments were quashed and never issued.
“In November 1971, Meyer was asked to resign by Assistant Attorney General L. Patrick Gray, acting on instructions from Attorney General Mitchell. “He told me they wanted my resignation, effective January 1,” Meyer recalled, “and that I could have it the easy way, or the hard way.” Meyer resigned his position and died of a heart attack a year later, at the age of 49. After leaving office, Meyer said he had been criticized as a “moderate” or “liberal,” rather than a “true conservative.” Many of his policies did not jibe with what his superiors wanted, but the big issue was “a philosophical area epitomized by the civil rights cases” (L.A. Times, Nov. 15, 1972).
“Despite all the evidence, the accused L.A. and Santa Barbara sheriffs’ officers were never prosecuted. Mitchell and Gray, for their part, would go on to become notorious figures in the Watergate scandal. Gray, briefly appointed J. Edgar Hoover’s successor at the FBI, was revealed to have destroyed evidence from Howard Hunt’s safe and was indicted for illegal break-ins, though he escaped conviction. Mitchell became the first U.S. Attorney General to be convicted of illegal activities and sent to prison.
“Their role in firing a fearless and nonpartisan U.S. attorney in Los Angeles is barely remembered today. But as we contemplate the current politicization of the attorney general’s office, it is worth remembering that quashing legitimate investigations is only a step away from instigating systematic injustice.”
RAMPARTS: HISTORY REPEATS ITSELF
It has been some 38 years since the massive police misconduct in Isla Vista was uncovered. But history repeats itself. Such misconduct was festering - again - in Los Angeles.
More than 200 lawsuits were filed in 2000 in Los Angeles by individuals alleging that they were "framed, shot or beaten by officers in the Rampart division's anti-gang unit."
The scandal involved the investigation of 82 incidents involving 50 officers and the reversal of more than 100 convictions tainted by police misconduct. Racial profiling, excessive force and the Rampart scandal caused the federal government in 2001 to impose a consent decree on the department mandating reforms.
Approximately 18 percent 200 lawsuits were dismissed. All in all, Los Angeles paid approximately $70 million in damages to the plaintiffs. The average settlement was $400,000 but 30 plaintiffs received $500,000 or more. (See Exhibit A, attached hereto, for additional information)
Taxpayers in Los Angeles might want to ask whether their tax money would be better spent reforming the police department rather than paying for officers' lawless conduct, or trying to protect them by making their personnel files more difficult to access.
SAN JOSE: HISTORY REPEATS ITSELF
Below is an article published by the San Jose Mercury News outlining the massive suits brought against another Ramparts-like situation occurring in that jurisdiction.
SANTA CLARA: HISTORY REPEATS ITSELF
In Santa Clara, the 2006-2007 Santa Clara Grand Jury reported that police misconduct was under reported as much as 50 percent by Internal Affairs (“IA”)as compared to reports reviewed by the Office of the Independent Police Auditor (“IPA”). They both got the same reports, but IA reported 50 percent less misconduct than the IPA. This strongly suggests that the police department’s own internal affairs department is complicit in sweeping misconduct under the rug. This is the quintessential “fox guarding the henhouse” example.
SAN DIEGO: A CESSPOOL OF MISCONDUCT
We have the same issues in San Diego as in Los Angeles and San Jose. The problem,
much of the time, is that prosecutors and judges protect law enforcement officers at all costs, just as they protected Peter Pitchess in Los Angeles in the 1970's.
Let me give you some examples.
A. I was a deputy public defender in 1992. I noticed over a period of just a week one officer arrested an unusually high number of people every night. I recall seeing five police DUI arrest reports on one night for this officer. But there was more. It looked like the officer had “whited out” the names of the suspects, and written new names in over the white out. The reports all looked essentially the same- the suspect usually was alleged to have “rolled” through an intersection in Mission Beach. But the suspect’s name was different from report to report. I reported this to my supervisor and heard nothing else.
In 2006 I saw that name again. History seemed to be repeating itself. To make a very long story short, I learned that a former city attorney prosecutor had gotten this police officer kicked off the DUI enforcement team. It seems that after the police department was satisfied that no one would be able to track this misconduct, they put him right back in the same neighborhood and he began falsifying police reports again.
What is shocking about this case is that the prosecutor who got this officer kicked off the DUI enforcement team for falsifying records is refusing to cooperate with me. He is a judge now. He never told any defense attorney that I know of about the officer falsifying reports. And now, some 14 years later, he has declined to assist me in my investigation which I take as tacitly trying to hide this officer’s continued misconduct from the defense bar.
Since I learned of this officer’s misconduct, numerous of his cases have been dismissed when defense attorneys caught him lying. We have been building up our own dossier of misconduct and sharing it because the courts are reluctant to provide us documents in this officer’s Pitchess file. I suspect this is because most of the judges run on a “Law Enforcement’s Choice” ticket for re-election. Granting pitchess motions bodes badly for re-election given the power of the police unions.
I am counsel on a Fourth District Court Appeal, Division One, case where a justice issued an Order to Show Cause why the Pitchess decision denying my request in that case should not be reversed. In short, the prosecution withheld evidence. The trial court, a former police officer, denied a very valid motion on a this rogue officer for no other reason than to protect him. But the Court of Appeal issued a stay of proceedings and demanded the City answer.
I’m still talking about the same police officer.
Another example of the prosecutors trying to protect this known rogue officer occurred when a prosecutor put him on the witness stand to lie. A Deputy City Attorney knew that defense counsel was going to call the officer’s sergeant to testify against the rogue officer in a suppression motion. Instead of just conceding that this rogue officer lied, the prosecutor put him on the stand. He lied. His sergeant testified and impeached the officer. The prosecutor put the rogue officer back on the witness stand to tell the judge that the sergeant was wrong. In short, this prosecutor suborned perjury. The judge granted the defense attorney’s motion and the case was dismissed based on the lack of this rogue officer’s credibility.
But the judge took no action against the prosecutor for putting on false testimony.
This rogue officer is still patrolling. He is still engaging in the same behavior. He’s out there tonight.
B. In 2000 another rogue officer from the DUI task force stopped a young Irish woman for “squealing” her wheels as she turned out of a driveway. The stress caused her to have an asthma attack. She asked the officer is she could use her inhaler. He said no. She repeated her requests continuously until she could stand it no longer. She reached into her pocket for her inhaler. The officer slammed her face into the cement, breaking her nose. The City paid out a hefty sum in damages after a civil rights case was filed. She was so terrified of this officer she moved to San Francisco.
Fast forward to 2007. A paraplegic is stopped by this same officer for allegedly making an illegal turn. The paraplegic was ordered out of the car. He told the officer he could not get out. The officer started yelling at him to get out. A passenger got the wheelchair out of the trunk. The paraplegic got himself into the wheelchair. The officer wheeled him to the rear of the patrol unit where he yelled, “Get out!” The paraplegic asked for accommodations under the Americans With Disabilities Act. He asked for a van. The office started yelling for him to get into the rear of the patrol unit. He could not. The officer hoisted him out of his chair and threw him longways into the back of the cruiser. Then the officer raced down the highway at speeds of more than 90 mph and slammed his brakes on from time to time so the paraplegic would slam into the rear of the passenger seat. Is a well known police abuse technique called the “Hollywood Screen Test.”
Once at the station, the officer yelled at the paraplegic to “get out.” Again, he said he could not. So, the officer grabbed onto the paraplegic’s ankles and pulled him out of the police cruiser, causing the man’s head to slam on the cement floor and bounce. He sustained a rotator cuff injury and a concussion.
The police report says that the paraplegic “walked with an unsteady gait.” The paraplegic wishes he could walk with any gait. But, he cannot walk at all. </
