On April 28, jogger Deb Westergaard was struck by a vehicle as she crossed F Street at the marked crosswalk south of Covell Boulevard, resulting in serious injury. Much to her chagrin, the Davis Police Department, in conducting an accident report, concluded that she was at fault. Ms. Westergaard has publicly disputed that determination, as well as raising concerns about the way in which the investigation was conducted.
The matter eventually was forwarded to the Michael Gennaco, the city’s Interim Independent Police Auditor (IIPA), for an independent review.
The report is mixed, with the auditor concluding the “at-fault” determination “regarding the accident itself to have been reasonable.” However, the report “identifies concerns about some aspects of the initial and follow-up investigation and makes attendant recommendations.”
The driver, as interviewed at the scene, “indicated that he was driving approximately 30-35 miles per hour. The driver said that as he approached the crosswalk, he looked in his rear-view mirror briefly. The driver stated that when he redirected his focus towards the front of the vehicle, he saw a female running through the crosswalk. The driver said he slammed on his brakes but struck the female with the front driver’s side bumper of his vehicle.”
However, the police supervisor “calculated that the truck was traveling at approximately 29 miles per hour at the point of impact.” After reviewing the incident, the “supervisor concluded that a review of the evidence indicated that the pedestrian failed to ensure the roadway was safe prior to entering it.”
He added, “The supervisor opined that the pedestrian had not re-checked the traffic when she entered the roadway and failed to notice that the truck was so close as to be a danger.”
One of the complaints offered by Ms. Westergaard was that the supervisor who interviewed her was rude and dismissive of her statement.
The investigator indicated that, during a follow up meeting with Chief Darren Pytel, “he had apologized for the statements of the supervisor. 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, the Westergaards “rejected that offer because it could not lead to a changed result in the ‘at-fault’ determination.”
The auditor and the Westergaards agreed to the idea of an outside expert review, and a retired police officer with 35 years experience was selected for that review.
In reviewing the incident, the expert found that the skid mark was made by a right front tire, not the right rear tire as determined by the DPD supervisor. He estimated that the truck was traveling at least 30-31 mph on the roadway. “The investigator found that the truck was potentially traveling faster but that at impact its speed was no more than 30-31 mph.”
He also agreed with DPD’s determination “that the pedestrian was at fault,” as he found “that the collision occurred within 2-3 seconds of the pedestrian entering the roadway. He concluded that once the pedestrian entered the street, she did not provide the driver sufficient time to perceive her and react.”
However, that is only part of the story here. As noted, “the spouse complainant and the injured pedestrian raised numerous concerns about the thoroughness and objectivity of the Davis PD accident investigation and the determination that the pedestrian was ‘at fault.'”
Here the IIPA faults the police. For instance, the supervisor failed to interview the pedestrian in this case. Writes the IIPA: “The failure to interview the pedestrian in this case directly was particularly concerning, not only because the officer had told the spouse that he would do so but also because he did not contact the couple when he decided it was no longer necessary.”
Furthermore, “The spouse said in his complaint that when he protested about the result to the officer and attempted to provide further information about his wife’s version of events, the officer accused him of trying to change her story. Instead of making such accusations against a person who had never claimed to be at the scene, the officer should have recognized the heightened importance of interviewing the pedestrian as he had originally agreed to do.”
The IIPA: “As a result of this failure, 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.”
The IIPA notes that there were “flaws in the original investigation.” However, he concludes: “As a result of the fortuitous appearance of another uninvolved witness and the follow-up investigation and calculations by the supervisor, the initial defects in the investigation were significantly ameliorated.”
The IIPA faults the performance of the supervisor. Here he notes that the pedestrian alleges that the supervisor was rude and dismissive. The pedestrian noted the supervisor told her that “marathon runners were risk-takers.” Writes the IIPA: “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.”
The IIPA points out that during his collection of a statement the supervisor had made statements to the pedestrian about the speed of the vehicle as well as reports that she failed to stop prior to entering the roadway.
“The information conveyed to the pedestrian by the supervisor about the speed of the vehicle appeared at best to be an effort to persuade her that she was wrong about the estimated speed of the vehicle and to explain why she might have miscalculated,” the IIPA writes. “The statement about other witnesses was an apparent effort to challenge the pedestrian’s account of the event.”
Writes the IIPA: “[T]he 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.”
Such an immediate challenge gives the impression that “the supervisor had already determined that the account of the witness was incorrect.”
Instead, he writes, “Any presentation of conflicting evidence to a complainant should be deferred until the investigation is concluded and a final determination has been reached.”
Furthermore, he notes, “Of even greater concern was the supervisor’s alleged statement to the pedestrian and spouse that having to re-investigate the traffic accident was delaying his work investigating two fatal accident investigations. Any supervisor who is conducting a complaint investigation should not voice any comment that the assignment was of less importance than other work. Doing so in this case understandably left the complainants with the impression that he viewed the case as an annoyance. This undermines the sense of professionalism and appropriate objectivity that contribute to public confidence.”
The IIPA also faults the police for failure to record the interview of Witness L when they called via telephone.
Writes the IIPA: “While this issue was not raised by the pedestrian or her spouse, the failure of the supervisor to tape-record any of the statements he collected is not consistent with standard investigative protocols for complaint investigations. As a result, the only record of those interviews is a brief written summary of their substance based on the supervisor’s recollection.
“More significantly, the failure of the supervisor to record the interviews makes it difficult for a reviewer within DPD’s chain of command or an outside reviewer such as the Independent Police Auditor the opportunity to review precisely (what) each witness said.”
The IIPA adds: “It is unfortunate that this best practice was not followed in this case, particularly considering its sensitivity.”
The Interim Independent Police Auditor concludes that “there were flaws in the Davis Police Department’s approach to both the original and subsequent investigations of the traffic collision at the center of this case. However, this is different than saying that the ultimate conclusion of those investigations was mistaken or invalid. Additionally, the independent analysis of the evidence that was obtained as a further layer of review found a sufficient basis to support the ‘at-fault’ finding. Given this evidentiary foundation, it is not our role to substitute our judgment for the agency so long as the ultimate determination was reasonable.”
He later adds: “The Department’s performance in this matter had shortcomings that deserve remediation: however unintentionally, they either produced or exacerbated the different investigative concerns that troubled the pedestrian and her spouse.”
He continues: “In the end, though, to the extent that the ultimate focus of the complaint was a challenge to the ‘at-fault’ finding, there is simply insufficient evidence to support a reversal of DPD’s decision.”
—David M. Greenwald reporting