Five before Midnight

This site is dedicated to the continuous oversight of the Riverside(CA)Police Department, which was formerly overseen by the state attorney general. This blog will hopefully play that role being free of City Hall's micromanagement.
"The horror of that moment," the King went on, "I shall never, never forget." "You will though," the Queen said, "if you don't make a memorandum of it." --Lewis Carroll


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Location: RiverCity, Inland Empire

Monday, July 28, 2008

Canary in the Mine: Setting precedent or breaking it?

***Update 5.4 earthquake hits Chino Hills at 11:42 a.m.****

Belo Blog has a lot of regional damage updates here.

Did you feel it?

Statistics about where the quake was felt by zip code.

More people have been asking questions about what's going on with the still unexplained death of Martin Gaspar Pablo, 38, who was the subject of a phone call for police assistance after he was allegedly pounding on the back door of one of the houses on Bluffwood Street in Canyon Crest. As came to light last week, the Community Police Review Commission was told by City Attorney Gregory Priamos that it was not to launch its own independent and parallel investigation into the Pablo incident until the city has determined through the coroner's report that it was able to do so. If it chose to act on its own, then the commission would be in violation of the city charter Section 810(d) and thus subject to a misdemeanor charge. This charge carries a maximum penalty of $1,000 fine and/or a six month jail sentence.

Some of the commissioners questioned this. Others blinked. But it's likely that the commission will have a second chance to determine what its response will be as it's likely that the issue will come up again at a future meeting. That is if the city manager's office and the city attorney's office even allow it to be included on a future meeting agenda, given that no item can be placed on the agenda without their approval.

It's the first time in its history that the CPRC has ever been "warned" of such a consequence by someone who theoretically could serve both as its advisory legal counsel and its prosecutor. If that wouldn't be enough of a conflict of interest to give anyone a headache, a visualization of Priamos balancing all his clients in this case like so many balls to juggle and not drop should.

So everyone is holding their breath waiting for the coroner's report which may or may not shed light on how Pablo died. It most likely will list a cause of death but it may or may not reach a conclusion on whether or not the actions of the officers who detained and handcuffed him played a role in his death.

If you've been following the CPRC and officer-involved death investigations for seven years, there's nothing really mysterious about what's going on on that end. The department's been very circumspect in releasing its preliminary information in most cases. Even at its initial briefings on officer-involved deaths before the CPRC, the department representatives speak briefly using terse sentences and don't answer questions from anyone before leaving almost as quickly as they arrived.

Having followed the procedure for about 12 officer-involved deaths which were all investigated by the CPRC since the first one, Vaseuth Phaisouphanh occurred in the summer of 2001, what's happening now on the department's end is pretty close to what's happened in other case with one major difference.

The one thing that is so unusual about this incident is that the City Attorney's office has pressured (through an implied threat or warning of criminal charges) the CPRC to not initiate an investigation and to not send out its own investigator to interview witnesses and gather information. That is the difference between this case and the others at this point in time in the process. The role of the city attorney's office in determining whether or not the CPRC can fulfill its charter responsibility and which deaths it can investigate and which it can't is a new one with no reason provided by City Hall for this sudden change in protocol. The same attorney who represents the city's interests and protects them when it's sued by an outside party including relatives of an individual who's died in police custody. Why this is suddenly so important or at least more important than just several months ago will be the topic of a future posting. What development in the past six months has put a different spin on how deaths involving the Riverside Police Department are handled? Here's a hint. Home, life, limb and transport. What do these things have in common? What do they all require?

What role does the coroner's report play in all this now as opposed to then? It depends on who is talking at any given moment.

As an individual pointed out to me, the coroner's report shouldn't be intended or treated like it's the focus of an investigation done by the CPRC. Instead, the actions of the officers involving the individual before he or she died should be what's examined. If the coroner's report is inconclusive in that regard, then what's left are statements by both the officers and the civilian witnesses. The city attorney's devotion to the coroner's report is a relatively recent development for reasons which will be outlined below.

The protocol for the autopsy is the same as it's usually done in officer-involved deaths involving Riverside Police Department officers, except in this case the department's management asked the Riverside County Sheriff-Coroner's office to expedite the procedure. What's usually released initially are the preliminary results (which have probably been released to the police department by now) which are usually the autopsy protocol completed by the medical examiner minus any toxicological tests and closer examination of pathological tissue samples taken from any relevant organs that are being investigated for cause of death. In cases like these where cause of death is not immediately apparent, this second step is a very common one, but it often delays the final coroner's report for up to six weeks or longer.

This process was what was used in the October 2005 incustody death of Terry Rabb. Rabb like Pablo was a man in his thirties who was not White and who was in medical distress before the officers arrived onscene after being dispatched out on a 911 call. In fact, in Rabb's case the call itself was for medical assistance. He had gone into severe hypoglycemic shock, was unaware of what was happening around him and he had acted out in ways that frightened his friends who were witnesses. Police were sent out and two arrived just as paramedics arrived to address with what one of them called "hypoglycemic unawareness". Friends of Rabb alleged that one of the officers had said that Rabb was on crack cocaine or PCP, neither of which appeared in his toxicology results. Apparently, these allegations were never investigated by the Officer-Involved Death Investigative Team, which was conducting a criminal probe for the Riverside County District Attorney's office.

Rabb, by everyone's accounts, was clearly in an altered state and unable to understand let alone obey commands issued by the officers. He was put in an attempted carotid restraint, with the officer on his back and his face pushed into the sofa cushions while he struggled. After officers and one paramedic handcuffed him, he was seated on the floor, with his back resting against the sofa when he went into cardiac arrest. He never recovered but died at the hospital from a heart attack and with a blood glucose level that was extremely low.

Even before the autopsy was performed on Rabb, a department representative said that diabetes killed Rabb and the actions by the officers had nothing to do with it in a Oct. 4, 2005 article by the Press Enterprise. By then, the CPRC had already sent out Investigator Butch Warnberg from the Baker Street Group to interview witnesses including Rabb's friends. The department briefed the CPRC on the initial information on the Rabb investigation as was customary for this process on Oct. 12, 2005, at least five weeks before it had even received the final coroner's report on Rabb.

Priamos never said anything publicly or at any CPRC meeting back then that it was a charter violation for the commission to investigate the Rabb case at all or even before the coroner's report had been completed. He never warned them of any consequences like fines and jail sentences. And one would think after he made comments at the meeting last week that as the author of the charter text he would understand its intent better than any other attorney, he would have been calling the commissioners aside and admonishing them not to launch the investigation into Rabb. But there was apparently nothing, just silence from his camp.

In fact, Priamos had just begun attending the meetings around that point in time thanks to controversy that was emerging during discussions on the CPRC's investigation and review of the Summer Marie Lane shooting case. In fact, his public involvement in the CPRC had been minimal until later that year. He had been invited to attend a workshop specifically for him in 2004 and declined stating he couldn't discuss issues with commissioners in a public setting. Oh how things have changed on that front! Since he attends every meeting now and was quite vocal at the July 23 meeting, it's hard to remember back when he was pretty much invisible when it came to the CPRC's operations at least in the public sphere.

But then the discussions on the Lane case played to a full house as representatives from the department's management, the Internal Affairs Division and a host of other city employees began sitting in and watching quietly as the commission discussed the content of its public report on Lane.

Rabb didn't play to nearly as full of a house as even Priamos was content to merely send one of his staff members, a deputy city attorney named Susan Wilson to monitor the proceedings of that case. She answered a question now and then and that was pretty much it. She never warned the CPRC members that they were in violation of the charter for investigating the Rabb case nor did she warn them that they could be looking at a fine and/or jail time in return. And one would think if Priamos felt it to be such a pressing priority, then he would have at least shown up at a meeting and certainly would have warned them as its legal counsel of the peril they were putting themselves into by investigating Rabb's death.

When the coroner's report came back on Rabb, it included the list of illnesses that Rabb had as the causes of his death but when it came to defining the role of the officers if any in that death, the coroner's report was much less conclusive. The department had kept the preliminary results of the autopsy to themselves, just like it had kept the toxicology results (which it had also expedited) for Lee Deante Brown in that fatal shooting case under wraps. Like Rabb, Brown was assumed to be under the influence of an illegal drug. But as it turned out, the toxicology on Brown like Rabb showed small quantities of THC from marijuana. What Brown was under the influence of, was something called paranoid Schizophrenia. Like Rabb, he had no capability at the moment in time that he encountered police officers of being able to understand verbal commands let alone respond to them. It was criminal behavior by Brown that initially drew the attention of the police officers through 911 calls by residents in the Eastside but his behavior wasn't that unusual for an individual experiencing a psychotic episode.

If you listen to the audio recording taken from one of the officer's digital recorder of his interaction with Brown before and up to the fatal shooting, you'll hear the officer issuing commands, the same words over and over while Brown is yelling about God, the devil and Aztec gods and he's calling for his daughter by her name. The officer's voice gets increasingly high pitched, its tempo faster. Then there's taser discharge sounds, followed by the arrival of a second officer and then before you can see it coming even as you know something's coming, two popping sounds which were bullets from one of the officer's guns.

The statements in the Rabb case didn't come with audio. The only officer to turn on his recorder (which wasn't required under the current policy) turned it on only after Rabb went into cardiac arrest and his friends began to turn their anger and fear towards the officers. The only statements were in interviews with the OID Team, from both officers.

Not much is known about Pablo, or what caused his medical distress and his death. If he has family, none of them has stepped forward publicly as is often the case. Much has been made by some individuals of his meager criminal record in Riverside County Superior Court and there's been speculation that he's everything from a drug addict to a would-be rapist. Why? Because if he had a contact with the police where he died soon afterward then he must be a criminal. There of course can't be any other reason why their paths might have crossed in such a way.

However, in this case, the department clearly stated in its public information release that it was determined by officers that Pablo wasn't committing a crime as much as that he was in medical distress. Like Rabb, he remained handcuffed for a while after he was first restrained but unlike in the case of Rabb, it's not known yet exactly how he was restrained and handcuffed. But then it wasn't as if the attempted carotid restraint used on Rabb to restrain him didn't come out into public view until a while later.

Another complicating factor in this case is how it's been handled by the police department since it happened. What kind of investigations has the department initiated into the incident? Did it launch an administrative probe or is it also conducting a criminal investigation to be reviewed by the Riverside County District Attorney's office?

The CPRC's investigator relies both on his or her own work product as well as that from the department's criminal investigation which it does and then forwards to the D.A.'s office. Included in the latter, are often voluntary statements by both the officers involved in the incident and any officers who were witnesses. Any statements given by officers to the Officer-Involved Death investigation team are voluntary and in the vast majority of cases, officers do provide those statements. The transcripts and recordings of these statements are included in the casebook that is provided to the CPRC investigator to use in his own investigation. If you access the criminal case book for the Douglas Steven Cloud (after it's been redacted), you will find these transcripts of officers' statements.

It's not clear whether or not a D.A. review will be conducted in the Pablo incident and if that hasn't been done, then all that's left is the administrative investigation which pursuant to state laws is done in secret. Any interviews by police officers for this investigation are often compelled meaning that they aren't voluntary and that officers must answer all questions by the administrative investigators or face termination. However, if they do give compelled statements because they have to answer the questions, any information disclosed as responses to questions can't be used against them in any criminal investigation or other proceeding. They are informed of this through the Lybarger admonition. But if compelled statements for an administrative probe are the only statements, then the only place that they could be examined by commissioners if they are able to independently investigate the Pablo case is behind closed doors. Which by its very nature doesn't exactly foster the belief that this is a transparent process and instead promotes the belief and suspicion that there is something to hide.

To be continued...

Who will manage the Fox Theater? This firm.

(excerpt, Press Enterprise)

The city is spending up to $30 million to renovate the 1,600-seat Fox, which dates to 1929. Officials plan to open it in September 2009, Graham said.

While the city hasn't yet signed an agreement with Stein/Malone, the deal points the council approved call for:

a three-year contract, expiring June 30, 2011, with the option to extend it twice, one year each time, at the discretion of the city manager.

the city to receive any money remaining from ticket sales after all expenses are covered. If ticket sales for an event don't cover expenses, the city must make up the shortfall.

the city to pay Stein/Malone $325,000 for fiscal year 2008-09 -- $125,000 for pre-opening marketing plus a $200,000 management fee. Stein/Malone will receive an annual $200,000 management fee in the following two years. The city must put up another $300,000 each year for performers' booking fees.

The city is planning meetings with community arts groups to seek their ideas as it develops a policy for their use of the Fox, Graham said.

If the Riverside Transit Agency thought that its preliminary decision to eliminate its route to Banning and Yucaipa was going to go down easy, the crowd of people who showed up at the hearing in protest have proven them wrong, During a time when gas prices are hitting both record highs and hitting commuters' pockets, the RTA is cutting bus services in outlying cities in Riverside County.

Still it remains to be seen whether or not this route can be saved.

Inglewood's city government is considering having another law enforcement agency investigate three recent officer-involved shootings in its city. This outside agency would be the Los Angeles County Sheriff's Department. This decision comes in the midst of protests by city residents and possible investigations by other outside agencies at the federal and state level. One officer was involved in at least two of the shooting cases.

(excerpt, Los Angeles Times)

"We are interested in continuing our dialogue with the city and potentially assisting with an independent review of the incidents," said Michael Gennaco, chief attorney for the Office of Independent Review. "We are going to look at policies, protocols and procedures regarding their investigative practices and the way the department responds to and learns from these events."

The Office of Independent Review was created by the county Board of Supervisors and consists of six attorneys with backgrounds in criminal and civil rights matters. The office is given wide latitude to investigate allegations of police misconduct and to come up with its own conclusions and recommendations.

Earlier today at a news conference at Inglewood City Hall, Rep. Maxine Waters (D-Los Angeles) called for a federal investigation into the police shootings.

"I don't trust any police department to investigate itself," Waters said. "We must take all necessary steps to determine why there has been an unusual number of shootings (by police) in the city of Inglewood in such a short amount of time."

Waters circulated a letter she sent to U.S. Atty. Gen. Michael Mukasey requesting a federal investigation into allegations of misconduct by police to "determine whether there is a pattern and practice of discriminatory conduct or violations of federal civil rights or federal criminal law."

Inglewood Police Chief Jacqueline Seabrooks did not attend the news conference, but Waters said that Seabrooks called her late Sunday and that the chief "fully supports an investigation."

The state's Legislative Black Caucus has called for California Atty. Gen. Jerry Brown to investigate last week's fatal police shooting of postal worker Kevin Wicks, 38.

Shocked in New York City is the police department after a video tape emerged on YouTube which showed one of the city's police officers rushing up to a bicyclist and slamming him on the ground with his shoulder.

The video tape is available at the above link and shows the incident which took placed about 24 seconds into it. Then it shows the cyclist trying to get up after he's fallen and the officer tackling him.

(excerpt, New York Daily News)

Officer Patrick Pogan, 22, of the Midtown South Precinct, was bounced to desk duty soon after the video of Friday's incident in Times Square appeared on YouTube.

"The video is bad - what can you say?" a police source said. The damning video not only revealed an out-of-the-blue attack but also seems to show Pogan lied about the incident in court papers.

Pogan was one of two cops at Seventh Ave. and 46th St. monitoring a Critical Mass bike rally when a swarm of cyclists rode by ringing their bells about 9:35 p.m. Without warning, Pogan, a former high school football offensive lineman, appears to single out one cyclist, jog toward the sidewalk and then slam his shoulder into the biker.

The impact sent Christopher Long, 29, crashing to the pavement in front of shocked onlookers.

"All of a sudden the cop picked this kid out and bodychecked him," said cyclist Craig Radhuber, 54, who was riding about 3 feet to the right of Long. "I couldn't believe what was going on."

When Long tried to get up, Pogan and his partner tackled him to the ground and tried to handcuff him, witnesses said. Long "was startled and shaken, and the officers were being really violent," said witness Bill DiPaola, director of Time's Up! an environmental group that supports Critical Mass.

And to make it worse, the video tape apparently didn't back up the officer's own statements about the incident which resulted in the cyclist's arrest on attempted assault, resisting arrest and disorderly conduct charges. But according to the video, the cyclist was merely riding his bicycle by before the officer clearly looks at him, rushes up and slams him. Then after arresting him, he writes his report on the incident. But apparently, didn't know that someone was there with a camcorder.


In court documents, Pogan said he saw Long weaving in and out of lanes and obstructing traffic before he ordered the cyclist to stop. The cop claimed Long deliberately drove his bike into him, sending both of them falling to the ground. Pogan claimed to have suffered cuts from the impact.

The video clearly shows Long trying to dodge Pogan, who appears to have remained upright the entire time.

Long, a grocer at the Union Square Green Market, has been described as an Army veteran and mild-mannered environmental activist. "He is a very well-meaning guy," said his boss, Morse Pitts, 56.

A law enforcement source said the charges against Long would likely "go away" and another source predicted Pogan would be fired.

It took five years but the decision by an appellate court on a death penalty case should surprise no one. The higher court upheld the murder conviction but overturned the death sentence in a capital murder case where former Riverside County Superior Court judge, Vilia Sherman kicked a Black juror off of the panel after other jurors alerted her that he was going to cast the sole vote against the death penalty.

(excerpt, Press Enterprise)

With the penalty phase overturned on state issues only, there is no appeal to other courts, said Deputy Attorney General Alana Cohen Butler.

The ruling opens the possibility that the penalty phase of Wilson's case will be retried.

The Riverside County district attorney's office planned to review the decision and "pursue the legal options open to us," spokeswoman Ingrid Wyatt said Monday.

Judges noted the dismissed panelist was the only black juror in the trial of Wilson, who also is black.

The juror, John Holland, had voted to convict Wilson of murder and initially voted for the death penalty, but then said he had changed his mind. That made him the only juror holding out for recommending a life sentence.

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