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

Tuesday, November 24, 2009

Forman Trial: The Mystery of the Missing Media Disk

The testimony in the ongoing trial of former Riverside Police Department officer, Robert Forman taking place in Riverside's old courthouse continued as two witnesses took the stand on Tuesday, Nov. 24, both of them Riverside Police Department officers. Sitting in the audience were Internal Affairs sergeants, John Capen and Marcus Smail. This division has been having representatives attend every day of trial. They sit in the back of the courtroom and remain fairly quiet, watching the proceedings which involve three felony charges of sexual battery and oral copulation under the color of authority stemming from complaints made by three different women.

Officer Henry Park, who's been employed by the department since he lateraled over from the Rialto Police Department in December 2005, had worked in the same beat as Forman in April 2008. Both of them worked the graveyard shift on the Eastside/University Avenue corridor beat and often frequented areas of their beat where there were higher levels of criminal activity including drug dealing and prostitution. Park said he had been familiar with the alleged victim who testified the previous day through prior contacts including occasions where he had arrested her. On one particular night in April 2008, he and his trainee Megan Edwards (Meyers) who would later become Forman's trainee patrolled that area and stopped several times near the Circle 1 store at University and Comer where the victim had been hanging out or as Park testified, loitering in front of the store.

Park testified that he had driven past the store several times during his shift, including once at approximately 11 p.m. At that time, he and Edwards had seen her loitering in front of the store. and she and another woman had approached a car. Parks said he didn't recall the name of the other woman.

"We drove into the parking lot," Park said, "We made initial contact."

He engaged in conversation with the victim about a prior arrest. She told him that this arrest had been "bad" and that he should focus on arresting bad people.

"What type of bad people," Park had asked.

Park said that he had hoped that the woman would give him information about criminal activity in the area including drug dealers. He said that he had partially helped him, meaning she had told him she knew where all the rock was but she wouldn't tell him. His conversation with her lasted less than a minute and he said she had been carrying Hostess donuts and nonalcoholic beverages. At about that time, Forman showed up. He was told that the victim was in the area by Park and he told the other officer that he would be able to get that information from her. He asked Park where the victim had gone. The two officers went their separate ways. Forman, driving down towards Comer and Park wound up going on a radio call for what he thought was about a 15-20 minute span but he wasn't sure.

Parks did come back to the area of the Circle 1 store, slowing down as he approached it. He said he saw a squad car parked on Comer south of Mission Inn Avenue and just north of the store. When asked, he said it was Forman's unit. Park saw the victim standing next to Forman's car.

Park also testified about whether or not patrol officers routinely gave money to informants or other people to buy drugs and he said no. That operation was carried about by specialized units which followed established policies and procedures including from the standard manual. He said that he and officers (Marco) Ortiz and Forman had been involved in a drug operation at Motel 6 but had found no drugs. They did find a box of Hostess donuts inside the hotel.

Under cross-examination, Park said he had received about 80 hours of class and field training on drug recognition, used to help determine if a person was under the influence of controlled substances by observing them for signs and performing evaluations. He said he wasn't sure if the victim had been high at the time he spoke with her.

Next on the witness stand was Police Sgt. Julian Hutzler, who before his promotion last year was assigned to work in the Sexual Assault and Child Abuse unit for two years. He had worked a variety of assignments for different law enforcement agencies during his 20 year career including the Oceanside Police Department.

In 2008, he received a call to respond to a victim's residence but couldn't respond because he was busy with another case in his unit. Three weeks later, he went out on request by the division commander on a Sunday to address this case where there were two women making allegations against a police officer and that officer was Forman. There was a search warrant conducted of Forman's lockers where he worked at Lincoln Field Operations Station. Each patrol officer was assigned a larger interior locker and a smaller outside one while they were working and both of Forman's were being searched as part of the investigation.

One of the items collected during the search of Forman's locker was his department issued digital audio recording device. Hutzler said that every field officer who obtained a recorder as required under departmental policy had to get a copy of that policy with it while signing for the device so they were aware of what it entailed. The policy states that every contact that's self-initiated by the officer has to be recorded. Any problems with activating the recorder or failing to record a self-initiated contact has to be reported as soon as possible to the supervisor and paperwork has to be filled out regarding that particular recording. The recording policy was required as a mandate of reform under the stipulated judgment that existed between the city and the State Attorney General's office from 2001-06.

While Hutlzer collected Forman's recorder from his locker, he noticed something amiss almost immediately.

"The first thing I noticed was that the media disk was missing," Hutzler said.

The absence of this small object that was about twice the size of a postage stamp and several times thicker was significant, given that it plays an integral role in the storage of recordings for downloading in the police department's recording database. And it's apparent loss raised some questions in an investigation into sexual misconduct allegations against Forman, not the least of which is why it apparently has never been found.

The recording device has limited built in internal memory which stores mainly the officer's identification information as well as file numbers and date stamps for the recordings but not the recordings themselves. The disks store the actual recordings that are downloaded into the department's database through a vehicle or station computer. That usually takes place at the end of a work shift. Each recording is downloaded individually through identifying its assigned file number.

Hutzler said there was no reason to remove the disk from the device. Doing so would render the recorder unable to operate in terms of downloading recordings. Perhaps if there was some malfunction of the disk which would generate a trail of record that the officer tried to remedy this situation by getting it repaired or replaced through the appropriate departmental channels. There was no history that showed that Forman had done that, according to Hutzler.

Also uncovered in the search of Forman's lockers was a 3 by 5 notepad that included information on a woman, her date of birth and a residential address and phone number. No reports had been done involving this woman either as a victim or a suspect.

Forman's clothing was submitted for testing and some of it was, for DNA through seminal fluid and blood and none was found. A bed spread was taken from one victim's residence and tested for DNA. A buccal swab was taken from Forman for DNA comparison.

Evidence Technician Tim Ellis processed the rear of Forman's vehicle and found hair but it was not tied to the victim and no evidence tied to Forman's DNA was found. There was more questioning of Hutzler by both attorneys regarding whether or not the DNA could be physically removed by cleaning either clothes or the inside of a squad car. Both attorneys stipulated to the lack of DNA evidence uncovered linking Forman to the crimes or crime scenes. How significant that is, remains to be seen when issues like time lapse between the crimes and the sample collecting of forensic evidence was done not to mention whether any cleaning methods were used, but it opens it up to interpretation in terms of not definitively tying him to a crime through physical evidence. Because of this, testimony of witnesses and other forms of evidence play an even more critical role in determining how this trial turns out.

Under cross-examination, Hutzler was asked if the act of taking the audio recorder out of a short pocket multiple times could cause the media disk to accidentally eject without the officer knowing it. Hutzler said the media disk only "ejected" out a small amount and then the remainder of it has to be removed manually. Any time any property was lost, damaged or destroyed, paperwork had to be filled out reporting it for replacement. He was asked about the disk having to be replaced if it ran out of memory.

"I've never seen one reach its full capacity," Hutzler said.

Hutzler testified that he had used his own digital recorder for about six years since his hiring when the department was still under its stipulated judgment. He had never had a memory card pop out while in his possession. As a field sergeant working the graveyard shift, he supervised 5-10(!) officers on his shifts and none of them had ever experienced that problem with their department issued belt recorders. It would seem unlikely that such a problem would go unnoticed for long because Hutzler did testify that if the person tried to activate the recorder without the media disk, that an error message would come up mentioning the missing disk. The defense attorney asked him if the officer would be aware that the memory card on his or her recorder had been erroneously ejected or was missing while it was tucked in his front shirt pocket. Hutzler mentioned that a card that's partially ejected might be felt as a sharp edge by the officer. So is the defense trying to raise an argument that Forman had lost his media disk while out on patrol and was not aware that it was missing? Is that possible?

The reason the whereabouts of the media disk has come up in the testimony elicited from Hutzler is that the disk in Forman's recorder was indeed missing at the time the search warrant was issued for his lockers (which was about a month after the allegations had been made) and there has been issues raised in the arrest warrants that 30 recordings were "missing" for February 2008 and there were no recordings at all for April 2008 in association with his belt recorder.

In all, there's a huge gap in Forman's recording history, which should have been enough to raise a red flag or two when it first happened but if it did, then that would be shrouded in the secrecy which surrounds law enforcement agencies when it comes to personnel investigations. But did the police department notice when Forman's recordings began coming up "missing" and if so, what did it do to address this situation? Did it ask him about the missing recordings? Did it put him on any watch list? The alleged recordings that were missing in February 2008 most likely were around the time or before the first alleged assault that is part of this current case being prosecuted against him. So what was on these missing recordings if they indeed have been erased? It's kind of disturbing because there's quite a few that are missing. What did they contain and if they were erased, what needed to be destroyed?

The issue of the "missing" recordings hasn't been addressed in trial testimony yet although Hutzler did testify about the department's issued audio recorders in general terms and in some ways more specifically about Forman's device to lay foundation for any future testimony about them should they arise during the prosecution's portion of the trial. But the questions have been asked if not answered about several issues pertaining to Forman's department issued recorder.

What did the department do when no recordings showed up for April? Did it do anything to address that situation? Or did it wait until the time it realized there was no media disk in Forman's recorder?

The situation with the digital audio recorders which the department has issued to its field division officers, traffic officers and supervisors since it was required to do so under the state consent decree. The actual policy was drafted about a year after the entered into the decree with the state and it was implemented with some success until the city manager's office mandated that a zero tolerance policy be implemented in August 2003 to improve compliance with the policy. At that point, discipline was handed out to officers who didn't comply with the policy without an excusable reason for noncompliance.

But even with those provisions, people have asked in different venues what happens to the recordings when they are made on the devices by officers who do press that "record" button for all professional self-initiated contacts. Where's the accountability involved in the process to ensure that the nearly 200 or so officers who carry them are complying with the policy? The department has said that it's there among their supervisors who monitor the usage of the recorders by officers in their charge.

The department has said that the supervisors of these officers monitor to make sure that the recordings are actually being downloaded into the databases which store them for a period of time before they are destroyed. This is done so that the department will be alerted when recordings go missing, meaning that an officer presses the "erase" button perhaps thinking that poof, so goes the recording but while it might be gone, the number it's been tagged with remains behind. So in that sense, recordings can't really be erased because if they are, then that will be known by the police department, that is if anyone's watching the downloading process in real time.

The department also keeps tabs on how many files are being downloaded by the police officers and how many of them as stated actually contain recordings rather than files which are essentially empty. However, the department doesn't regularly listen to the recordings due in part to the large quantity of them even within a short period of time. The only time that the recordings are actually listened to is if they become part of evidence for a citizen complaint or internal investigation although some have said that they might be randomly audited. Which brings up the question, is it possible for officer misconduct to be audio taped and what would happen to it if that were the case? Would it be erased by the officer like the police department's investigators clearly suspect in the case of Forman's missing audio files? What if misconduct were audio taped either accidentally or intentionally by an officer and then downloaded into the database with other recordings?

It sounds strange to ask that question but in terms of evaluating the checks and balances in place to ensure that the use of the digital recorders continues to be a mechanism of accountability for officers during self-initiated contacts, it's interesting to contemplate. And whether there's any difference between misconduct that's audio taped and erased and misconduct that's audio taped and downloaded into a database.

If evidence of misconduct were downloaded in the database, it likely would only come to light if a complaint were filed or an internal investigation were initiated involving it that would include that particular recording as evidence. Otherwise, unless it was discovered through a random audit process, it would sit in the database until the date it would be purged and probably no one would be the wiser. Because of this, misconduct or illegal activity wouldn't necessarily be erased from a recording or have to be erased, but of course it would be increasingly likely for erasure if there were a chance any victim of that behavior would file a complaint or contact the department or any of its officers about it. The other possible reason would be if there were any chance that those recordings would be accessed as part of an investigation into misconduct which would cause numerous audio recordings to come under scrutiny whether there was direct misconduct depicted on them or not.

Hopefully, some more illumination will be given in terms of why the audio files that are missing which include at least 30 in February and more, including most likely on the media disk that vanished apparently without a trace. Because it's kind of daunting to realize that if these files were indeed erased and the media disk was indeed removed, then something must have been recording that Forman viewed as a potential problem for him. And it would be troubling indeed if the department first became aware of the problems with his missing recordings only when it began investigating the criminal allegations raised by the three reporting women. Troubling indeed.

A pair of opinion pieces were published in the Press Enterprise on the budget crisis impacting the Riverside County.

County Supervisor Bob Buster says to cut the public safety departments' operational budgets, which is backed by the county's largest employee union, the SEIU which also states that furloughs don't save money.

On the other hand is in great financial shape. According to the mayor.

RPD Online Survey

The Riverside Police Department will soon be having a survey for the upcoming Strategic Plan 2 available on the internet for city residents to fill out.

The RPD survey is on its Web site and it's this link. Much more discussion of the Plan, the process and what should be included in it ahead.

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