Is This Why They Are Called “The Dark Side of the Force?”
In my August Warning Bells article, I described the unfair treatment of an officer who had been involved in an off-duty officer-involved shooting. The unfair treatment has gotten even worse.
The facts of the incident are gone into in detail in the previous article available at www.warningbells.com under the “Warning Bells Articles” tab, or LAPD. com/members/TBL/tbl_archive/, if you need to refresh your memory.
In brief, the officer (referred to as “Officer A”), his girlfriend and her friend had been at a birthday party at a nightclub late one night. Some suspects made statements about the women and Officer A and his companions got in their car to leave. As they were pulling out of the parking lot, a suspect came up to the side of the officer’s car and suckerpunched him in the face several times. The officer saw stars and felt he was going unconscious. He pulled his gun and fired two or three shots out the window, missing the suspect. Officer A fled the scene, went home and sent his girlfriend and her friend to their homes. He removed the license plates from his car in case the suspects had followed him and went inside.
He did not report the shooting for over an hour. When he did, the use-of-force investigation was started, a search warrant was written and he was kept awake for 33 hours and ordered to participate in an interview. Then he was ordered back to the station to wait for another search warrant. By the time of his release, he had been up for 40 hours.
The Department then ordered the officer to a Board of Rights before the use-of-force investigation had even been completed — a strategy never before used — and denied him a copy of the FID report to prepare his defense, on the grounds that it wasn’t done yet. The League was forced to file a lawsuit, which was unsuccessful, to prevent the Board from proceeding.
Our issue here is the process, not the final disposition of the charges.
The Board is now in progress. The Board members are struggling to be fair to the officer, but the defense is being handicapped by Internal Affairs’ refusal to release evidence. Every artifice possible is being used to keep light from getting into this investigation. Ergo, “The Dark Side of the Force.” No light allowed.
The fact is that Force Investigation Division (FID) has done at least a dozen interviews of persons connected with this investigation in the typically thorough manner that they use to investigate every officer-involved shooting. In every case, except this one, these interviews have been given to the accused officer as part of the discovery.
Because the unfinished report was denied to the defense, the League authorized our business agent to conduct interviews of the FID investigators to find out who those witnesses were that had been interviewed and what materials existed concerning the case.
According to a sworn declaration by the business agent, he contacted the lead FID detective who, as can be seen, was cooperative and wanted to be fair. The business agent requested the investigation materials. The FID detective said he thought that the defense had everything (as well he should have, since this is how all previous cases had been handled). The FID detective told the League investigator that he had no problem turning over the materials; he just had to contact the Department Advocate Section to make sure it was all right. He did. The advocate told him no.
The League attorney was outraged to the point of apoplexy. It was determined that the FID report had even been turned in and approved by the FID lieutenant, but had not yet been approved by the FID captain. The deputy chief of Internal Affairs opined that the FID report would not be considered complete until it was accepted by the Chief of Police, which does not occur until after the Use of Force Board.
The League attorney demanded the interviews and other evidence obtained by FID that exists independently of the report. There are interview tapes, paraphrased statements, evidence reports and on and on. Internal Affairs’ repeated position is that if the Chief didn’t use the evidence to adjudicate the charges, then the officer doesn’t get it.
This position reveals a complete misunderstanding of what our American justice system is all about. In this country we have a system based on due process. The United States government is built around a set of checks and balances.
It is supposed to work like this in the LAPD disciplinary system as well. The Department does an investigation and gathers evidence and witness statements. In those cases where it appears, after examining the evidence, that the officer has committed an act of misconduct, the officer is charged and is entitled to a Board of Rights. The officer has the right to a defense representative and the opportunity to defend against the charges.
The key part of the system is the right to test the evidence. This is the fundamental component of due process. The American system is built on the philosophical foundation that we do not like to make mistakes and convict innocent people. Therefore, the accused is given the opportunity to test the evidence to see if it is as strong for conviction as the prosecutor, or in our case the advocate, thinks it is. The Board of Rights hears each side’s evidence and renders a decision.
If you think the Chief of Police reads every document and listens to every interview tape before sustaining a misconduct charge against an officer, you must be from Mayberry. When you have a department the size of ours, the chief has no choice but to rely on advisers to make recommendations to him based on their evaluation of the evidence.
The Chief is spoon-fed information by Internal Affairs, along with their recommendations. Now Internal Affairs is insisting that only their spoon feed be given to the defense. You do not win Boards of Rights and clear officers by drinking the same Kool-Aid that Internal Affairs gave to the Chief.
Proper representation of the officer demands an independent examination of all of the evidence. Maybe different pieces of the evidence not considered important by Internal Affairs will clear the officer. Maybe a piece of evidence will lead to other evidence that will clear the officer. No one really knows.
Hiding evidence will lessen the chances that an officer will be cleared and, therefore, Internal Affairs will have a higher conviction rate, but that is not the goal of the system. The goal of the system is to ensure that convicted officers deserve to be convicted. And that requires the independent testing of the evidence against the officer.
What is ironic is that the current Chief is renowned for his concern about being fair in the disciplinary process. In this case, the evidence that the Chief relied on to recommend termination of an officer may fail to stand up to scrutiny. What that means is that an officer who didn’t deserve to be terminated is cleared. Isn’t that a good thing? (Knowing Charlie Beck, he would be happy about that outcome. Only those that have their egos wrapped around obtaining a conviction would be unhappy.)
Normally, the system works. Internal Affairs accurately judges the evidence and gives proper recommendations to the Chief. Evidence is shared with the accused officer and if, try as they might, the defense team cannot refute the evidence, the result is that the Department was correct in terminating the officer.
Rather than hiding evidence from the accused officer, Internal Affairs should be proud of the strength of their case. They should lay the evidence out on the table and challenge the defense team to try and weaken it. If this kind of confidence in their case doesn’t exist on the part of Internal Affairs, is it ethical to bring charges against the officer in the first place?
There is a Board of Rights manual that was negotiated with the League. It clearly states in Section 395 that the accused officer is to be given the complaint investigation, photographs, audio and videotapes, interview notes and the chronological record as part of the discovery. It doesn’t say anywhere that only those materials relied upon by the Chief are to be given. Nor would the League have ever agreed to any such thing.
Internal Affairs is violating its own rules. Why?
There is also a criminal statute in the penal code that says this: Penal Code section 135.5. Tampering with evidence or destroying it to harm public safety officer who is subject of disciplinary proceeding Any person who knowingly alters, tampers with, conceals, or destroys relevant evidence in any disciplinary proceeding against a public safety officer, for the purpose of harming that public safety officer, is guilty of a misdemeanor. [Emphasis added.]
Any bets on whether the Department will ever enforce this section?
This latest denial to produce evidence has forced the League to authorize the accused officer’s attorney in this case to amend his lawsuit to include a deliberate violation of the accused officer’s civil rights. Again, it is the process that is the League’s concern.
We are a country of rules, not rulers. When the rules can be ignored at the whim of the powerful, we are no longer a country of rules. Our freedom (or lack of it) then comes from the grace of the powerful, not from the rule of law.
Remember, what can happen to one can happen to anyone. We are all, therefore, in danger and should hear warning bells. This fight will continue …
Be legally careful out there.
