Lee Deante Brown: The final briefing part one
The Community Police Review Commission listened as its investigator Butch Warnberg gave the long-awaited final briefing on the fatal officer-involved shooting of Lee Deante Brown. Warnberg appeared more tentative than he had at earlier briefings perhaps aware that the status of the contract involving his firm, the Baker Street Group, had been challenged by Asst. City Manager Tom DeSantis in recent weeks.
Attending the briefing were DeSantis and City Attorney Gregory Priamos who obviously had decided that it was important enough for him to personally attend in lieu of sending Deputy City Attorney Susan Wilson who had attended previous meetings centered on the investigations into other officer-involved deaths currently being litigated. Also sitting in the audience were Deputy Chief John DeLaRosa, Sgt. Rick Tedesco and the head of the Internal Affairs Division, Ed Blevins.
It was only the second appearance by representatives of the department's Internal Affairs Division, and the last time they attended a CPRC meeting was in the autumn of 2005 when the commission was discussing the fatal shooting of Summer Marie Lane. After releasing its public report on that shooting, the commission determined in closed session that this shooting had been in violation the department's use of force policy. Now they are back in attendance while another shooting is being investigated by the CPRC.
Their faces didn't look too happy as they sat in the audience listening to the briefing while several of them flipped through the written report. DeSantis motioned interim CPRC manager, Mario Lara, aside at one point for a conference.
Brown, who was African-American, was shot and killed by Officer Terry Ellefson after Brown had allegedly grabbed his taser during a struggle. Officer Michael Paul Stucker had responded initially to calls made to the department reporting a man acting strangely.
Both officers tased Brown at least three times each, both through discharging the probes and by attempting or doing contact tases. Stucker had been carrying an Advanced M26 taser while Ellefson was equipped with the X-26 model. Both are manufactured by Taser International, Inc. and shown here.
Some of the major developments in the case.
DNA: Here, but where?
David D. Wu, a senior criminalist from the Department of Justice performed an analysis on the DNA sample provided from Ellefson's taser by the police department. DNA was collected from Brown, Ellefson and Stucker
According to his test, both officers were excluded as possible donors and Brown was included as a possible donor which essentially meant that a positive match had been made connecting him to the taser.
However, his DNA was not the only one found on Ellefson's taser. At least one other unidentified individual's DNA was also present on the swab taken. Both samples of DNA were on the low end of the scale in terms of the ability of the DNA to be picked up during the testing for an analysis, according to Wu.
A major problem with the testing was that Wu stated in his report that he did not know from which part or parts of the taser the DNA sample was taken. Normally, there would be separate swabs submitted from several different parts of the taser including the grips, trigger and the probes on the end of the taser because it's not enough just to find the relevant DNA but it also matters where it was found, because Brown had been contacted tased by Ellefson several times before the shooting. In this case, there was no such clarification of where the sample had come from. In fact, it was possible that one general sample was taken from all over the taser.
What all this means, was one of the issues discussed at the meeting.
"We don't know where the DNA was taken," Warnberg told the commission,"We don't know if they swabbed the side, the probes or the trigger."
Given that there was one other DNA sample from an unknown donor and possibly others found on the taser, it is definitely possible that the probes located at one end of the device had been one location where a DNA sample was collected. After all, Warnberg had said that it wouldn't be unexpected to find even Brown's DNA on the probes, because Ellefson had contact tased him between 3-5 times. It would be more significant if Brown's DNA had been found on the trigger or the grip, because it would indicate that he had grabbed and possibly aimed the taser. That is a question that now may never be answered.
Unfortunately, the more samples from different unidentified DNA donors that showed up in the sample, the more likely it is that the probes had been swabbed for a sample of DNA because that is where that type of DNA would most likely be found because the possible sources of the DNA might have been people who had been contact tased in the past with that particular taser. Given that the majority of the time the tasers have cartridges on them in order to be ready for future use, that might provide some protection to DNA samples from exposure to the outside elements and slow down their degradation.
If samples were indeed taken from the probes, then that doesn't rule out the possibility that it was the probes that were the source of Brown's DNA found on the taser. If this is the case, then the value of this evidence has lessened.
Warnberg did tell the commission that in his opinion, the DNA samples would be from the last person to handle the taser, however it is likely that the individuals who contributed the other DNA samples pulled off the taser had come into physical contact with the taser via being contact tased in earlier incidents, before the last time the taser had been handled by Ellefson which was seconds before the shooting.
"Drop the Gun", said who?
At the last briefing on the Brown shooting last November, Warnberg said that the night before he had received some new information regarding a statement that had been made on the belt recording submitted by Ellefson that would change his analysis of the shooting. Apparently, the issue came to his attention after he had conversed with an FBI agent out of Los Angeles who was doing a civil rights investigation into the Brown shooting. The FBI agent told him that he had listened to the belt recording and had not heard anything until the Riverside Police Department had told him that there was a statement on the recording that had been uncovered. The FBI agent had listened to the recording and then heard the statement.
What was this statement? It depends on whom you ask. There are two different versions of it in Warnberg's report.
In an excerpt submitted by the investigator of a portion of Ellefson's belt recording, the statements were made as followed.
Here, the statement is attributed to Ellefson and indicates that he had yelled at Brown to drop the gun although on the same belt recording, Ellefson later refers to the "taser" twice.
On Feb. 27, one day before the updated briefing, the police department submitted a transcript of Ellefson's belt recording that had been signed by the officer on that date.
RPD Transcript(no timeline):
Here, on the police department's own transcript of Ellefson's belt recording, there is no identification provided of the person who made the statement, "drop the gun." The source of the statement could be Ellefson, it could be Stucker or it could be one of the witnesses yelling it after seeing Ellefson pull out his gun before he shot Brown.
Both transcripts taken from Ellefson and Stucker's belt recordings show that Ellefson had told Brown to put his hands behind his back before the shooting, but because neither transcript included a time line, it's difficult to know how to compare the two transcripts except for the fact that the recordings were staggered about 1:35 apart. That might help shed light on who it was that made that statement which is obviously critical information.
Neither Ellefson or Stucker said in their interviews with investigators from the Officer Involved Shooting Team that they had issued commands at Brown to drop a gun or a taser. Ellefson's response to that issue is included below in terms of what kind of commands he was giving after he had fired two shots from his gun at Brown.
(excerpt, transcript from Ellefson's interview as stated in Warnberg's report)
There were no statements uncovered on Stucker's recording that indicated that he had issued any commands at Brown to drop the taser or the gun before the shooting. The last statement made on it that was included on the transcript was when Ellefson had told Brown to put his hands behind his back. Earlier in both recordings, Stucker had warned Ellefson to look out for the loose handcuff dangling from Brown's arm because he was swinging it around like a weapon.
Friendly fire by taser:
Warnberg presented a summary of how the incident began and ended that was based on eyewitness testimony, officer interviews and other available evidence. One of the incidents that he included in the narration was when Stucker had been struck by a taser probe and received a considerable electric shock from the probe which at that time was attached by a wire to a cartridge from Ellefson's taser.
At some point in the incident, Stucker had pulled the spent cartridge off of his taser because Brown had pulled one of the probes out and flung it on the ground which rendered the taser ineffective at cycling through the probes. Since it was on the ground, there was no point for Stucker to cycle his taser to incapacitate Brown during the five-second cycle. So Stucker had decided to contact tase Brown instead and attempted one time to do so. However, as he tried to apply his taser, Ellefson decided to discharge his own taser, an X-26 model, at Brown and after he had done so, one of the probes struck Brown, the other penetrated the knuckle of a finger on Stucker's left hand. Stucker's recollection was that he felt an intense shock after Brown had grabbed his arm. After that, he pulled himself out of the situation and turned his back to Brown and Ellefson to address the errant probe in his hand which had been the source of the electric shock. It's not clear how long Stucker had this back turned doing this, as timing problems with both tasers as evidenced in Warnberg's report did not offer any assistance here in establishing a time frame.
One thing that appears clear is that Stucker was probably shocked by the probe in his hand until around the time that Ellefson removed the cartridge. Ellefson then contact tased Brown between 3-5 times at approximately five second durations and had already lost the taser by the time Stucker had turned around to face Brown again and at that time, saw Ellefson's taser in Brown's hand.
Ellefson's taser discharges:
In his statement, Ellefson had thought that the probes of his taser had both hit Brown but when he fired it and again when he cycled it, nothing happened, which is why he decided to remove the cartridge off of his taser and attempt to contact stun Brown. Stucker had not had much succss with his taser discharges either, which is why he had stuck his taser in the small of his back and instead deployed his baton, according to Warnberg. Stucker had taken out his expandable baton to hit Brown on the legs after he said that he had seen Brown squatting or sitting on the ground with his legs in front of him and holding Ellefson's taser in his hand. He had hit him twice and was about to deliver a third strike, when he heard two shots fired from Ellefson's gun.
In contrast, Ellefson had said the following about the final seconds before the shooting.
"...and as I moved away, the suspect stood--kind of pushing forward and lunged toward directly at me with the taser...As I was pushing away, I saw that he was bring the taser towards me. And I drew my duty weapon and fired two shots towards his center mass."
Five of six civilian witnesses said that Brown had been sitting or kneeling on the ground when he had been shot. One said that he had been standing. None of the witnesses saw anything in Brown's hands, according to narratives provided of their interviews included in Warnberg's report.
Warnberg hired the firm, Applied Graphic Sciences of San Diego to do forensic illustrations of the shooting taking into consideration reported body positions, bullet trajectory and the autopsy report. Three possible scenarios were presented that put Brown in a standing position(as reported by Ellefson), a squatting position(as reported by Stucker) and a sitting position(as reported by Stucker and civilians). The conclusion reached was as followed.
"According to Doreen DeAvery of Applied Graphic Science, based on the trajectory of the two bullets, it is most likely that the victim was either sitting or squatting."
Which means that DeAvery had somewhat ruled out the possibility that Brown had been standing while shot as reported by Ellefson and the police department during its initial briefing on the shooting. It also means that listening to the briefing probably has been the easiest part of the considerable task that lies for the CPRC ahead as it prepares to draft its public report, during a time period when it has been fighting to maintain its own identity.
Attending the briefing were DeSantis and City Attorney Gregory Priamos who obviously had decided that it was important enough for him to personally attend in lieu of sending Deputy City Attorney Susan Wilson who had attended previous meetings centered on the investigations into other officer-involved deaths currently being litigated. Also sitting in the audience were Deputy Chief John DeLaRosa, Sgt. Rick Tedesco and the head of the Internal Affairs Division, Ed Blevins.
It was only the second appearance by representatives of the department's Internal Affairs Division, and the last time they attended a CPRC meeting was in the autumn of 2005 when the commission was discussing the fatal shooting of Summer Marie Lane. After releasing its public report on that shooting, the commission determined in closed session that this shooting had been in violation the department's use of force policy. Now they are back in attendance while another shooting is being investigated by the CPRC.
Their faces didn't look too happy as they sat in the audience listening to the briefing while several of them flipped through the written report. DeSantis motioned interim CPRC manager, Mario Lara, aside at one point for a conference.
Brown, who was African-American, was shot and killed by Officer Terry Ellefson after Brown had allegedly grabbed his taser during a struggle. Officer Michael Paul Stucker had responded initially to calls made to the department reporting a man acting strangely.
Both officers tased Brown at least three times each, both through discharging the probes and by attempting or doing contact tases. Stucker had been carrying an Advanced M26 taser while Ellefson was equipped with the X-26 model. Both are manufactured by Taser International, Inc. and shown here.
Some of the major developments in the case.
DNA: Here, but where?
David D. Wu, a senior criminalist from the Department of Justice performed an analysis on the DNA sample provided from Ellefson's taser by the police department. DNA was collected from Brown, Ellefson and Stucker
According to his test, both officers were excluded as possible donors and Brown was included as a possible donor which essentially meant that a positive match had been made connecting him to the taser.
However, his DNA was not the only one found on Ellefson's taser. At least one other unidentified individual's DNA was also present on the swab taken. Both samples of DNA were on the low end of the scale in terms of the ability of the DNA to be picked up during the testing for an analysis, according to Wu.
A major problem with the testing was that Wu stated in his report that he did not know from which part or parts of the taser the DNA sample was taken. Normally, there would be separate swabs submitted from several different parts of the taser including the grips, trigger and the probes on the end of the taser because it's not enough just to find the relevant DNA but it also matters where it was found, because Brown had been contacted tased by Ellefson several times before the shooting. In this case, there was no such clarification of where the sample had come from. In fact, it was possible that one general sample was taken from all over the taser.
What all this means, was one of the issues discussed at the meeting.
"We don't know where the DNA was taken," Warnberg told the commission,"We don't know if they swabbed the side, the probes or the trigger."
Given that there was one other DNA sample from an unknown donor and possibly others found on the taser, it is definitely possible that the probes located at one end of the device had been one location where a DNA sample was collected. After all, Warnberg had said that it wouldn't be unexpected to find even Brown's DNA on the probes, because Ellefson had contact tased him between 3-5 times. It would be more significant if Brown's DNA had been found on the trigger or the grip, because it would indicate that he had grabbed and possibly aimed the taser. That is a question that now may never be answered.
Unfortunately, the more samples from different unidentified DNA donors that showed up in the sample, the more likely it is that the probes had been swabbed for a sample of DNA because that is where that type of DNA would most likely be found because the possible sources of the DNA might have been people who had been contact tased in the past with that particular taser. Given that the majority of the time the tasers have cartridges on them in order to be ready for future use, that might provide some protection to DNA samples from exposure to the outside elements and slow down their degradation.
If samples were indeed taken from the probes, then that doesn't rule out the possibility that it was the probes that were the source of Brown's DNA found on the taser. If this is the case, then the value of this evidence has lessened.
Warnberg did tell the commission that in his opinion, the DNA samples would be from the last person to handle the taser, however it is likely that the individuals who contributed the other DNA samples pulled off the taser had come into physical contact with the taser via being contact tased in earlier incidents, before the last time the taser had been handled by Ellefson which was seconds before the shooting.
"Drop the Gun", said who?
At the last briefing on the Brown shooting last November, Warnberg said that the night before he had received some new information regarding a statement that had been made on the belt recording submitted by Ellefson that would change his analysis of the shooting. Apparently, the issue came to his attention after he had conversed with an FBI agent out of Los Angeles who was doing a civil rights investigation into the Brown shooting. The FBI agent told him that he had listened to the belt recording and had not heard anything until the Riverside Police Department had told him that there was a statement on the recording that had been uncovered. The FBI agent had listened to the recording and then heard the statement.
What was this statement? It depends on whom you ask. There are two different versions of it in Warnberg's report.
In an excerpt submitted by the investigator of a portion of Ellefson's belt recording, the statements were made as followed.
0 Activated
:01 Ellefson said, "Palm Dart"
:56 Stucker: "Watch the cuff; he's swinging that cuff as a weapon."
1:06 Ellefson: "Drop the gu"
1:07 Shots fired.
1:07 Shots fired.
Here, the statement is attributed to Ellefson and indicates that he had yelled at Brown to drop the gun although on the same belt recording, Ellefson later refers to the "taser" twice.
On Feb. 27, one day before the updated briefing, the police department submitted a transcript of Ellefson's belt recording that had been signed by the officer on that date.
RPD Transcript(no timeline):
Officer Ellefson: "Hands behind your back."
Suspect Brown: (inaudible) "God."
Officer Ellefson: "Hands behind your back"
Unidentified Speaker: "Drop the gun"
(shots fired)
Here, on the police department's own transcript of Ellefson's belt recording, there is no identification provided of the person who made the statement, "drop the gun." The source of the statement could be Ellefson, it could be Stucker or it could be one of the witnesses yelling it after seeing Ellefson pull out his gun before he shot Brown.
Both transcripts taken from Ellefson and Stucker's belt recordings show that Ellefson had told Brown to put his hands behind his back before the shooting, but because neither transcript included a time line, it's difficult to know how to compare the two transcripts except for the fact that the recordings were staggered about 1:35 apart. That might help shed light on who it was that made that statement which is obviously critical information.
Neither Ellefson or Stucker said in their interviews with investigators from the Officer Involved Shooting Team that they had issued commands at Brown to drop a gun or a taser. Ellefson's response to that issue is included below in terms of what kind of commands he was giving after he had fired two shots from his gun at Brown.
(excerpt, transcript from Ellefson's interview as stated in Warnberg's report)
Det. Cobb: "The suspect is--still got the taser in his hand. Are you...and/or Officer Stucker still giving commands to him?"
Terry Ellefson: "...I'm--I was giving commands for the suspect to get on the ground."
There were no statements uncovered on Stucker's recording that indicated that he had issued any commands at Brown to drop the taser or the gun before the shooting. The last statement made on it that was included on the transcript was when Ellefson had told Brown to put his hands behind his back. Earlier in both recordings, Stucker had warned Ellefson to look out for the loose handcuff dangling from Brown's arm because he was swinging it around like a weapon.
Friendly fire by taser:
Warnberg presented a summary of how the incident began and ended that was based on eyewitness testimony, officer interviews and other available evidence. One of the incidents that he included in the narration was when Stucker had been struck by a taser probe and received a considerable electric shock from the probe which at that time was attached by a wire to a cartridge from Ellefson's taser.
At some point in the incident, Stucker had pulled the spent cartridge off of his taser because Brown had pulled one of the probes out and flung it on the ground which rendered the taser ineffective at cycling through the probes. Since it was on the ground, there was no point for Stucker to cycle his taser to incapacitate Brown during the five-second cycle. So Stucker had decided to contact tase Brown instead and attempted one time to do so. However, as he tried to apply his taser, Ellefson decided to discharge his own taser, an X-26 model, at Brown and after he had done so, one of the probes struck Brown, the other penetrated the knuckle of a finger on Stucker's left hand. Stucker's recollection was that he felt an intense shock after Brown had grabbed his arm. After that, he pulled himself out of the situation and turned his back to Brown and Ellefson to address the errant probe in his hand which had been the source of the electric shock. It's not clear how long Stucker had this back turned doing this, as timing problems with both tasers as evidenced in Warnberg's report did not offer any assistance here in establishing a time frame.
One thing that appears clear is that Stucker was probably shocked by the probe in his hand until around the time that Ellefson removed the cartridge. Ellefson then contact tased Brown between 3-5 times at approximately five second durations and had already lost the taser by the time Stucker had turned around to face Brown again and at that time, saw Ellefson's taser in Brown's hand.
Ellefson's taser discharges:
13:48:30 (probes fired)
13:48:36(probes cycled)
13:48:39(cycle)
13:48:49(contact tase)
13:49:00(contact tase)
13:49:11(contact tase)
13:49:17(?)
One immediately noticeable problem with Ellefson's taser discharges which are included along with those of Stucker's in Warnberg's report is that the timer in Ellefson's taser is recording an incorrect time. The clock is set for the first tasing about four minutes before Stucker arrived and seven minutes before Ellefson arrived. Also, if you look at the times that Stucker's taser was discharged, you will notice that his tasings took place after Ellefson's if you were to solely go by what time was given rather than the chain of events.
Stucker's taser discharges:
13:55:48(taser probes discharged)
13:55:55(probes cycled)
13:57:16(contact tase attempted)
In his statement, Ellefson had thought that the probes of his taser had both hit Brown but when he fired it and again when he cycled it, nothing happened, which is why he decided to remove the cartridge off of his taser and attempt to contact stun Brown. Stucker had not had much succss with his taser discharges either, which is why he had stuck his taser in the small of his back and instead deployed his baton, according to Warnberg. Stucker had taken out his expandable baton to hit Brown on the legs after he said that he had seen Brown squatting or sitting on the ground with his legs in front of him and holding Ellefson's taser in his hand. He had hit him twice and was about to deliver a third strike, when he heard two shots fired from Ellefson's gun.
In contrast, Ellefson had said the following about the final seconds before the shooting.
"...and as I moved away, the suspect stood--kind of pushing forward and lunged toward directly at me with the taser...As I was pushing away, I saw that he was bring the taser towards me. And I drew my duty weapon and fired two shots towards his center mass."
Five of six civilian witnesses said that Brown had been sitting or kneeling on the ground when he had been shot. One said that he had been standing. None of the witnesses saw anything in Brown's hands, according to narratives provided of their interviews included in Warnberg's report.
Warnberg hired the firm, Applied Graphic Sciences of San Diego to do forensic illustrations of the shooting taking into consideration reported body positions, bullet trajectory and the autopsy report. Three possible scenarios were presented that put Brown in a standing position(as reported by Ellefson), a squatting position(as reported by Stucker) and a sitting position(as reported by Stucker and civilians). The conclusion reached was as followed.
"According to Doreen DeAvery of Applied Graphic Science, based on the trajectory of the two bullets, it is most likely that the victim was either sitting or squatting."
Which means that DeAvery had somewhat ruled out the possibility that Brown had been standing while shot as reported by Ellefson and the police department during its initial briefing on the shooting. It also means that listening to the briefing probably has been the easiest part of the considerable task that lies for the CPRC ahead as it prepares to draft its public report, during a time period when it has been fighting to maintain its own identity.
Labels: CPRC, officer-involved shootings, public forums in all places
posted by Five Before Midnight | 10:46 PM
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