Eye on the Courts: The Year of Misconduct

Orange County Deputy Public Defender Scott Sanders delivers the keynote speech on prosecutorial misconduct on November 15 at the Davis Senior Center
Orange County Deputy Public Defender Scott Sanders delivers the keynote speech on prosecutorial misconduct on November 15 at the Davis Senior Center

When the Vanguard planned its Fourth Annual Dinner and Awards Ceremony around the theme of prosecutorial misconduct, we of course had little idea how big the issue of misconduct in general was going to end up being in 2014.

Scott Sanders, our keynote speaker, was not exactly a household name, but as anyone who listened to his story last month can attest, he found some extraordinarily shocking things in the course of doing his job and defending a mass murderer in a death penalty case.

This week, he made Orange County’s 100 Most Influential List. The OC Register writes, “In 2014, Sanders was recognized by California Attorneys for Criminal Justice for his role representing Scott Dekraai and Daniel Wozniak, two high-profile capital murder cases underway in the county.”

“As part of those cases, Sanders unveiled misconduct on the part of county prosecutors regarding the use of jailhouse informants, a revelation that has sent shock waves through the local justice system. After a series of legal motions and hearings, Superior Court Judge Thomas Goethals ruled that prosecutors in the Dekraai case had failed to turn over evidence and improperly used informants, although the judge declared the prosecutors’ actions were ‘negligent rather than malicious.’”

The Register reported in November that “two prolific informants with extensive criminal records received more than $150,000 from law enforcement agencies for obtaining information from jailed suspects awaiting trial.”

The Register uses his quote that he gave the Vanguard, “Unless there is a fear created by an outside force that there are ramifications when you commit misconduct, it’s going to happen.” They add, “There inevitably has to be trust in the system, that we (defense attorneys) can have access to everything they (prosecutors) know.”

In early 2015, “hearings challenging the district attorney’s use of jailhouse informants will resume. Sanders also is gearing up for the trial of Wozniak, a former community theater actor charged with the dismemberment and murder of two Orange Coast College students in 2010. The defense attorney also is pushing to have the death penalty taken off the table for Dekraai, who has already pleaded guilty to killing eight people at a Seal Beach salon in 2011 amid a custody dispute with his ex-wife.”

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“Don’t Let It Be a Black and a White One”

The N.W.A. anti-police classic from the late 1980s by the rap group suggests that the problems in the police transcend racial lines, with blacks in the police showing their allegiance to white cops by being even more brutal to blacks on the street.

The full lyric goes, “But don’t let it be a black and a white one, ‘Cause they’ll slam ya down to the street top, Black police showing out for the white cop.”

But a report from Reuters from last week suggests that black police in New York feel the same threat from fellow police. The story written by Michelle Conlin of Reuters notes, “A number of black NYPD officers say they have experienced the same racial profiling that cost Eric Garner his life.”

Reuters writes, “What’s emerging now is that, within the thin blue line of the NYPD, there is another divide – between black and white officers. Reuters interviewed 25 African American male officers on the NYPD, 15 of whom are retired and 10 of whom are still serving. All but one said that, when off duty and out of uniform, they had been victims of racial profiling, which refers to using race or ethnicity as grounds for suspecting someone of having committed a crime.”

The story goes on to describe these incidents. The officers told the wire service that “this included being pulled over for no reason, having their heads slammed against their cars, getting guns brandished in their faces, being thrown into prison vans and experiencing stop and frisks while shopping. The majority of the officers said they had been pulled over multiple times while driving. Five had had guns pulled on them.”

The police officers’ union, the PBA, as well as the NYPD, declined comment on the story. Though Reuters noted, “Defenders of the NYPD credit its policing methods with transforming New York from the former murder capital of the world into the safest big city in the United States.”

“It makes good headlines to say this is occurring, but I don’t think you can validate it until you look into the circumstances they were stopped in,” said Bernard Parks, the former chief of the Los Angeles Police Department, who is African American. “Now if you want to get into the essence of why certain groups are stopped more than others, then you only need to go to the crime reports and see which ethnic groups are listed more as suspects. That’s the crime data the officers are living with.”

“Blacks made up 73 percent of the shooting perpetrators in New York in 2011 and were 23 percent of the population,” Reuters notes. “A number of academics believe those statistics are potentially skewed because police over-focus on black communities, while ignoring crime in other areas. They also note that being stopped as a suspect does not automatically equate to criminality. Nearly 90 percent of blacks stopped by the NYPD, for example, are found not to be engaged in any crime.”

The black officers told Reuters that they had been exclusively racially profiled by white officers. Around one third of them said they filed a complaint to a supervisor, however all but one “said their supervisors either dismissed the complaints or retaliated against them by denying them overtime, choice assignments, or promotions. The remaining officers who made no complaints said they refrained from doing so either because they feared retribution or because they saw racial profiling as part of the system.”

Investigative Report Calls For Rethinking California Laws on Police Transparency

Thomas Peele is an investigative reporter who specializes in issues of transparency. Last week he wrote an article that it was time to rethink California’s laws on police transparency.

Mr. Peele writes, “In California, laws allow police to hide misconduct findings behind claims that revealing what’s in their personnel files should never be publicly seen. That law now needs to be viewed in the context of national outrage about the killings of unarmed African American men by police in Missouri, New York and elsewhere.

“But as the country engages in new debates over police misconduct, California’s special-interest laws protecting cops’ personnel recor should be examined anew,” he writes. “It’s simply bad public policy that serves only cops. Want cops to behave better? Then require their behavior, and what comes of it, to be disclosed.”

Mr. Peele recounts the story of Cleveland Police Officer Timothy Loehmann’s shooting of 12-year-old Tamir Rice.

Mr. Peele writes, “Yes, police were responding to reports of someone waiving what turned out to be a toy gun. Cleveland police claimed Loehmann told Rice three times to raise his hands. The video shows that to be very doubtful. Police also claimed Rice was near other people and perhaps a threat. The video shows he was alone.”

The key point is this. Because Ohio has no laws blocking the release of police personnel files, we were quickly able to learn that another police department had dismissed Officer Loehmann for incompetence, which Mr. Peele said raised “immense questions about how Cleveland Police hired him. Department leaders later admitted they hadn’t checked his record.”

Moreover, “Documents about Loehmann’s brief stint with the Independence, Ohio, police show that he became ‘distracted’ and ‘weepy’ during firearms training, Ohio media reported.”

“He could not follow simple directions, could not communicate clear thoughts nor recollections, and his handgun performance was dismal,” a deputy chief wrote. “I do not believe time, nor training, will be able to change or correct the deficiencies.”

However, Mr. Peele notes, “If Loehmann had been a California cop, such truths about him would remain locked away.” He adds, “That police demand absolute support no matter the sins of the few plays directly to the secrecy. There’s no gray. Just blue — or wrong.”

Mr. Peele noted the reaction against Mayor de Blasio and writes, “The same either-you’re-with-us-or-against-us mentality is pervasive in policing everywhere. You saw that in the idiotic tweets of San Jose cop Phillip White, who blathered into the ether: ‘Threaten me or my family and I will use my God given and law appointed right and duty to kill you.’”

San Jose is now deciding how to discipline Mr. White. Mr. Peele writes, “Many are calling for his firing. Even given the national attention scorn he brought upon himself, what his department does with him will be a secret under California law.”

In Ohio this would be public, but here in California we cannot know what officially happened.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Davis Progressive

    what is interesting to me is the issue of racial profiling.  if you talk to white officers in davis for instance, it doesn’t happen here.  if you talk to black officers, like former ucd chief calvin handy, they’ll tell you they think it does happen here.

    that said, i think the nwa line is more accurate than not – the thin blue line keeps black officers in line even if they themselves end up on the receiving end at times.

  2. Davis Progressive

    peele raises critical issues, but he doesn’t go far enough.

    In a 2006 Supreme Court decision, Copley Press v. Superior Court, the California Supreme court “held that records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public. The decision prevents the public from learning the extent to which police officers have been disciplined as a result of misconduct.”
    Prior to Copley, “Internal affairs records were confidential, while records of administrative appeals to outside bodies such as a civil service commission were open to the public.”
    As the ACLU notes, “Copley Press has effectively shut off all avenues for the public to learn about misconduct involving individual police officers, such as excessive force and dishonesty; officer-involved shootings; patterns of misconduct and leniency; previous discipline for misconduct by another agency; and even the identity of officers in misconduct cases.”

    and this from the vanguard in 2012

    Since its advent in the early 1980s, this has been area of controversy, as California goes much further than any other state in not only protecting the rights of peace officers, but also seeming to hide their misconduct from public scrutiny.
    “Police officers in other states don’t get these types of incredible veil of secrecy for everything related to disciplinary proceedings,” Mr. Risher told the Vanguard.  “Police officers have enormous authority as they walk the streets – they carry guns, they can arrest us, they can toss us in jail.  We the people of this state should have the right to know which police officers are abusing their authority, and which officers quite frankly are carrying out their duties without generating any complaints.”
    Michael Risher argued that these codes “create a veil of secrecy with anything having to do with police officer discipline, complaints against police officers, or how police officers have abused their authority.”
    “That is very different from a police officer’s bill of rights, and it’s a big problem,” he stated.  He argued that it is perfectly appropriate for police officers to have procedural protections when they have been accused of wrongdoing and are in the process of fighting those charges.

    The problem is that all complaints against police officers, regardless of whether they are founded or unfounded, “all of those complaints are also completely shielded from public scrutiny and the public has no idea of knowing whether the officer that they are interacting with has recently been accused of some serious offense and for whatever reason is still on the force.”

  3. Miwok

    Boy, that rambled from the courts misconduct to Police misconduct in a hurry.

    While I enjoy reading about these things, I thought the reportage was about Courts and misconduct. I guess it all gets lumped together? I think you detract from the title and subject by interjecting other topics, like my English professor used to say, and I am still guilty of, staying on topic?

    If the PD and Courts really took care of business, they would weed out the bad apples and take care of them for good. Right?

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