Commentary: What to Make of McGregor Scott’s Hire as Investigator

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McGregor Scott

After getting burned with the hiring of John McGinness, the city of Davis went big to try to get an investigator who would be seen as fair and impartial.  They went to the large firm of Orrick, Herrington & Sutcliffe, LLP and a former United States Attorney for the Eastern District of California and former District Attorney of Shasta County for McGregor Scott.

They will pay $500 an hour for his services, but the hope is that he can bring credibility to the investigation, credibility that the first hire, former Sacramento County Sheriff John McGinness, clearly lacked.

The problems surrounding the hire of John McGinness are said to have caught Chief Darren Pytel off guard.  Mr. McGinness was said to have a solid reputation, but it was pretty clear from the Vanguard’s reporting that the former sheriff was not only quite conservative but also heavily biased in favor of law enforcement.

While his statements regarding the Civil Rights Act led to his dismissal, his comments about racial profiling data should have been a huge red flag.

For the selection of Mr. Scott, the city clearly hopes to avoid the problems that beset his predecessor.  Where Mr. McGinness seemed impulsive and almost naïve politically, Mr. Scott has had to operate in far more high profile roles, such as the Lodi terror investigation.

That investigation might be seen as a giant red flag in and of itself.  After all, the FBI initially claimed the targets of their investigation had direct ties to Al Qaeda.  From the start, the Lodi investigation seemed to be something of a witch hunt and it was disconcerting for many to see Hamid Hayat sentenced to a 24-year prison sentence in 2007.

Mr. Hayat confessed to FBI agents that he had attended a terrorist camp and was accused of coming back to the U.S. to commit violent jihad and of lying to federal agents.

The key evidence was a lengthy and exhaustive interrogation that led to a contested confession.

The LA Times noted, “During the initial days after the arrest of Hamid Hayat, federal law enforcement officials repeatedly boasted that they had uncovered an Al Qaeda terrorist cell in Lodi, 35 miles south of Sacramento.

“But the facts of the case ended up far narrower in scope. Scott, the federal prosecutor, said he never personally made a declaration about a terrorist cell, but he apologized nonetheless.”

“To the extent we may have created false expectations, I regret that,” he said.

There is also his involvement in Orrick’s investigation into former UC Davis Chancellor Linda Katehi – a report that led to her August 2016 resignation as chancellor to the university.

There are those who will point to his background as a prosecutor with some measure of suspicion.  There are those who fear that someone who has prosecuted crimes will automatically side with the police.  Those concerns are valid.

Moreover, it was a little concerning to learn that David Spencer, an attorney at Orrick, is working with the Yolo County DA’s office to get trial experience by prosecuting cases while on the payroll with Orrick.

Given that the Yolo County DA is prosecuting the five Picnic Day defendants with felonies, it seems like a potential legal conflict of interest.

People need to understand that the legal threshold for conflict here is such that a public defender’s office cannot represent multiple defendants in the same trial and therefore we have a separate conflict panel of private attorneys who are contracted to represent co-defendants in a trial.

Nevertheless, there are strengths here that make McGregor Scott potentially a good fit for what Davis needs.

The CAB (the Community Advisory Board which advises the police chief), which Chief Pytel asked to help vet candidates, believed that the city should not use a prior police officer.  While there are many police officers that I think would do a very good job, I think the CAB’s thinking here was sound, and certainly so from a public relations perspective.

Having an attorney who knows criminal law was seen as the best approach.

Mr. Scott has a reputation for professionalism that sets him apart from other candidates.

There is one further advantage to Mr. Scott and that is that he and his firm are not beholden to working with law enforcement groups for their normal business.  That can allow a person like McGregor Scott to be scrutinizing evidence without fear that it will cost him business down the line.

That is the advantage a big firm has over, say, a private consultant like John McGinness.

Still, I would have preferred someone like Ken Williams, a use-of-force expert who is a former homicide detective in Boston.  And yes, ironically a former police officer.

He appeared this weekend on Investigation Discovery’s “Black and Blue,” described as “an urgent and timely exploration of the current state of police affairs and race relations.”

I highly recommend you watch the entire segment, but most telling is his breakdown of the video of the shooting of Mario Woods and explanation of what the police did wrong in that shooting.  Later he compares it to a situation in Camden, NJ, where the police were able to avoid a use of deadly force in a very similar incident.

See the video here: https://www.investigationdiscoverygo.com/black-and-blue/black-and-blue/

For Davis’ Picnic Day incident, the key questions are going to focus on how the incident started, whether the plainclothes officers violated department policy, whether their approach instigated the incident, and why the incident turned violent.

In the end, we shall see if McGregor Scott can give this incident the scrutiny that it needs.  At this point, until I have evidence to the contrary, it seems necessary to give him the benefit of the doubt.

—David M. Greenwald reporting


Vanguard Monthly Conclave: Creating a Workable Model For Police Oversight in Our Community

Wednesday, June 28 at 6 PM – 8 PM

Sophia’s Thai Kitchen
129 E St, Davis, California 95616

The Vanguard Monthly Conclave in June features a pertinent discussion on police oversight – what we are doing now, what models are available, and why we need it.

Discussion will feature:

Nora Oldwin, People Power, Davis
Darren Pytel, Davis Police Chief
Aaron Zisser, Police Oversight Consultant

Event will be held at Sophia’s Thai Kitchen in the patio
Doors open at 6 pm, event starts at 6:30
Admission is free but there is a suggested sliding scale $15 to $50 donation
A portion of the proceeds at the bar will go to the Vanguard



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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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18 thoughts on “Commentary: What to Make of McGregor Scott’s Hire as Investigator”

  1. Keith O

    Mr. Hayat confessed to FBI agents that he had attended a terrorist camp 

    Why does one attend a terrorist camp unless they plan on committing an act of terror?

    As I understand it the Katehi investigation ended up costing around $1 million, are we looking at something like that now?

    1. David Greenwald Post author

      As I read it, the only evidence of the terrorist camp came in his confession and the question is whether his confession was accurate given the circumstances under which it was obtained.

      It would take 2000 hours to generate $1 million in costs at $500 an hour. As I was told by council, there has not been a request by the city on financing this investigation which means it is projected at this time to be below the threshold for council action.

        1. David Greenwald Post author

          I think it’s $50,000, but would have to look it up to be sure. That would be 100 hours, which is way over what I would estimate this investigation to go.

  2. PhilColeman

    “There are those who will point to his background as a prosecutor with some measure of suspicion.  There are those who fear that someone who has prosecuted crimes will automatically side with the police.  Those concerns are valid.”

    Why are they valid? Here we have a vivid demonstration of pre-conceived bias ruling on somebody who is summarily judged as having pre-conceived bias.

    I freely express my pre-conceived bias, he can’t. I say it’s “valid,” end of discussion.

    There’s this (totally false) image that a prosecuting attorney at any level of government is nothing more than a pawn of local law enforcement. The police toss a case at him/her and charges are automatically filed.

    Care for a dose of fact? Want to find out how our prosecutors really work? Feel free to examine the workload of any prosecutor anywhere in the United States. Talk to thousands of criminal investigators across our country and ask the percentage of cases submitted are selected for prosecution. All this is tracked statistically and easily audited, if fact is of any interest. Funny how those who depict prosecutors as police pawns never think of doing this for support of their personal prejudice.

    Ask any criminal defense attorney if he/she negotiates pending cases on the strength of knowing the prosecutor cannot possibly prosecute all the “good cases” the receive.

    The fact is, that many more cases are refused for prosecution than filed. The prosecutor makes these determinations on the evidence available–and then the likelihood of successful prosecution.  A lot of “good cases” are rejected simply because there is no available courtroom to try it. Ask any sitting judge, any court clerk or administrator, if you don’t believe this.

    This is the “validity” and reality of the prosecutor role. The reality is that prosecutors look for reasons to reject a submitted case simply because they don’t have the resources to prosecute, and don’t have a courtroom to try it.

     

  3. David Greenwald

    Question asked about how the public will find out about the investigation:
    Dirk Brazil: “We will release what we can given personnel rules etc. We need to see what the findings are first. ”
    Darren Pytel: “There will be some type of public report. We won’t know exactly what can be released until findings are done “

  4. Ron

    How about this:

    Recommend that (in the future), unmarked police vehicles (and officers without uniforms) do not drive right up to a crowd blocking the street.  (And, without saying this occurred, avoid participating in any verbal confrontations as well.)

    Recommend that in the future, officers stop at least a few feet away from a crowd, identify themselves immediately (if unmarked), and (without any obvious malice), order the crowd to move out of the street due to safety concerns.

    Marked vehicles would operate much the same way, except that identification would essentially not be needed.

    If that doesn’t work, call for backup, before taking further action (unless attacked).

    How’s that?  Did I save the city $50K?

     

  5. Tia Will

    Ron

    Sounds great as general policy. Won’t address the existence of criminal charges and lacks any judgement on whether or not involved officers should have retraining or any kind of disciplinary action. Sorry for your unpaid time.

    1. Ron

      Ha!  That’s true.

      Someone else commented that they were inclined to give those involved (the police, and those accused of criminal charges) a “pass”, on this one.  That’s sort of been my “non-professional” reaction (so far), as well.

      Not sure if this is worth the time, money or effort to dig very deeply.  In this case, I’m somewhat more interested in preventive measures (and de-escalation techniques), for the future.  Not quite as interested in discipline, or criminal charges.

      Still not willing to let people illegally block traffic lanes for extended periods, even (or perhaps especially?) on Picnic Day.

      My 2-cents, anyway.  (Probably what it’s worth.)

        1. Ron

          David: I’ve previously suggested something similar (at least, to consider it).  Not sure if it will totally address blocking of (other) streets, though. (Not to mention other, more “troublesome” behaviors that periodcially occur on Picnic Day.)

          In any case, good question.

        2. Ron

          As a side note (regarding the criminal charges), I’m still wondering why one of the individuals was reportedly carrying ammunition.  (I am not familiar with the laws regarding this, but I find it troubling.)

          Based on that (along with the immediate physical confrontation), my gut tells me that this situation did not really require much “instigation/escalation”, by the police. On the other hand, they were “peacefully” blocking the street, prior to the incident.

        3. Howard P

          Ron… at the risk of being flippant… guns don’t kill people… bullets do…

          We really don’t need ‘gun control’… we should seriously look at ammunition control… have heard/read that Israel focuses on ammunition control… not gun control… makes sense.

          Anyone with a lick of sense/knowledge can figure out how to ‘fire’ a bullet without a firearm, per se… https://en.wikipedia.org/wiki/Improvised_firearm.

          NRA mantra is, “guns don’t kill people, people kill people”… the truth (unless you are bludgeoned with a gun) is that people with ammunition kill people.

          And there are knives, other weapons, bare hands, piano wire, etc., etc.

        4. Ron

          Good point, Howard.  Might be a more effective control.

          At times, I’m reminded of Rodney King’s question – “can’t we all just get along”? (Seriously, that impressed me, considering all of the circumstances in which that statement was made.)

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