When the Westergaards first approached me two years ago, they were very frustrated, not only with the result of the police investigation into the very serious collision in which Deb Westergaard suffered very serious injuries, but they felt that the investigation was flawed and that the police were biased against them.
Over two years after the April 28, 2016, collision we finally have answers. Here I will focus mainly on the flaws of the police investigation, because I believe they very heavily contributed to the distrust that the Westergaards have in the findings of the main investigation into fault.
The very thorough 23-page report by Interim Auditor Michael Gennaco shows many lessons that should be learned – lessons that show what could have been avoided through common sense. Would the Westergaards have accepted a somewhat counter-intuitive investigation conclusion that went against them, had the police done their due diligence and treated them with the respect they deserved from the start? It is hard to know.
But the lesson here screams the fact that, without doing that due diligence, faith in the process has been undermined. My experience is that people will accept adverse findings if they believe the process was fair and reasonable.
I will add one further point here – the city needs to reconsider that crossing on F Street – a crossing that kids and bicyclists use. The problem that I have with the finding of fault here is that, while it may be true that Deb Westergaard only gave the driver about two to three seconds to react to her presence in the crosswalk, the driver was traveling above the speed limit by most determinations – whether it was 5 or 10 mph above remains a matter of some dispute and he was traveling 30-31 (in a posted 25 zone) when he struck her, admitting also that he was looking over his right shoulder to merge.
Consider that if he had been looking forward the whole time and traveling the speed limit, would he have seen the pedestrian before she entered the roadway, anticipated her entry, and been better prepared to react? Too much speculation perhaps, but when assessing fault here, it would seem that fault should be more evenly shared.
Remember, Mr. Gennaco did not rule that Ms. Westergaard was at fault, only that he didn’t have enough to overturn the judgment of the DPD – which conclusion he found reasonable, even with the flaws in their investigation.
What I found interesting is that the complaints made by the Westergaards – for the most part – were upheld by the police. She complained that the supervisor failed to interview her and get her statement. She complained that the supervisor made comments to her that were inappropriate, such as marathon runners being risk takers. The police failed to properly document interviews.
Mr. Gennaco concluded the following. First, because of the failure to interview her, “the spouse and pedestrian rightly concluded that DPD had made a determination of ‘fault’ without providing the pedestrian the full opportunity to set out her version of the incident. It understandably raised skepticism about the thoroughness of the initial DPD investigation.”
Furthermore, regarding the “risk-taker” comment, Mr. Gennaco concludes that “the comment was best left unsaid as it created the impression that the supervisor had already adjudged the pedestrian as a ‘risk-taker’ simply because she had indicated that she was a marathon runner and prior to the supervisor collecting the facts in the re-investigation.”
Finally, after pointing out that the supervisor challenged her account, Mr. Gennaco writes that “the supervisor should not have used the opportunity to try to persuade or challenge her that her account was incorrect. At that point, the supervisor’s role was to simply collect the account of the pedestrian that the initial officer had failed to effectively do.”
This is actually very familiar to me, as back in 2005, when the Halema Buzayan incident happened, one of the complaints was that the Professional Standards sergeant used a citizen’s complaint filed by the family as pretext to attempt to once again interrogate the suspect and convince her to confess to a crime, when the sergeant’s role was simply to take a statement as to Ms. Buzayan’s complaint about the conduct of the officer.
These three things combined, I think, to convince the Westergaards they were simply not going to get a fair investigation by the Davis Police Department.
Several people have pointed out to me that the city has gone out of its way to rectify the situation. Clearly that was the right thing to do, but the problem is that the well was already long since poisoned.
For example, there was a follow up meeting with the police chief and he “apologized for the statements of the supervisor.” That was clearly the right thing to do.
Writes Mr. Gennaco: “The Chief had also offered a ‘restorative justice’ session where the couple’s concerns about the investigation could be discussed with the investigating officer and supervisor.”
However, Mr. Westergaard rejected that offer “because it could not lead to a changed result in the ‘at-fault’ determination.”
In fairness, part of the problem is that the Westergaards saw and continue to see the flawed investigation as leading to that ‘at-fault’ determination. And, to this day, they continue to believe that, even with a review of the investigation, the finding of Mr. Genacco was simply that there was not enough evidence to overturn their judgment. This is the equivalent in football of a “call stands” determination rather than the “ruling on the field is confirmed.”
The city and chief have continued to attempt to rectify the situation after the fact.
In a September 25, 2018, letter to Ms. Westergaard, Chief Pytel writes: “I am very sorry we’ve never had the opportunity to meet and discuss the collision and our investigative protocols. When I met with your husband, I tried to convey how sorry I was that you were involved in the collision, how horrible it must have been to have been injured so badly, and how upsetting I’m sure it was to experience additional frustration and disappointment with our investigation of the collision.
“It is never our intent to create conflict or make a situation worse because of an investigation we conduct. I apologize to you for being left feeling the way you did.”
He concluded, “We do strive for a display of good manners and professional communication. That didn’t occur here and I do apologize to you for that as well.”
Likewise, City Manager Mike Webb added, “It is imperative that we exemplify professionalism at all times. That didn’t occur here and I do apologize to you for that. On behalf of the City, I appreciate you bringing your concerns forward and for participating in this important process. I believe both the City and the community have benefited as a result.”
There are several points I want to get across to the readers here. First of all, Ms. Westergaard was correct when she complained both of her treatment and the inadequate investigation. Second, the police clearly made initial missteps in how it was handled. Third, to their credit, I think both the chief and the City Hall recognized that there were clear failures that were made. They attempted to rectify them, both through policy changes as well apologies.
Something everyone reading this should bear in mind – most of the time, you will see pro-forma acknowledgment of sustained complaints. The Westergaards actually received a genuine apology from the city leadership.
But, in the end, there are some things that really cannot be remedied. The Westergaards lost trust in the system when they felt mistreated, when they felt insulted and disrespected during a time of tremendous hardship (I think Chief Pytel’s letter captured this quite well), and as a result even good faith efforts to get things right may not ever be enough here.
—David M. Greenwald reporting