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

Thursday, November 26, 2009

Forman Trial: A third woman testifies about sexual assault

The Trial of Former RPD Officer Robert Forman

Day Nine

The day before Thanksgiving saw a full day of testimony at the ongoing trial of former Riverside Police Department officer Robert Forman and the day started with Police Sgt. Julian Hutzler on the witness stand testifying to his initial contacts with the third victim who was housed in one of the county jail facilities in Riverside. Hutzler had gone to the jail with his partner in the Sexual Assault and Child Abuse unit, Det. Michael Barney.

There were more people in the audience including people who appeared to be relatives of the witness and defendant as well as a victim-witness advocate and Internal Affairs Division sergeants, John Capen and Marcus Smail. Members of this investigative unit have been a constant presence at this trial sitting in the back of the courtroom in plain clothes. Who they are investigating isn't clear because Forman's not been employed by the agency for over a year but it appears that most of the officers who testified so far have only been interviewed about varied incidents in this case by criminal investigators with the department.

The two detectives from the sexual assault and child abuse division had gone out to the jail at 10 p.m. and the woman had been woken up from her cell and brought down to a 6 by 8 foot medical ward for questioning. The interview lasted about an hour and a half and was taped by a digital recorder. She appeared tired as if she had been asleep. Hutzler reassured her that she wasn't in trouble and they weren't there to question her about any crimes she might have done. They didn't speak with her very long because she was tired and there wasn't any great urgency. She said quite a few times, I don't want to get anyone in trouble and didn't want to tell on anyone or be a "rat". She appeared reluctant to say anything which Hutzler testified was not out of the ordinary at all.

Later, Hutzler and another detective from the unit, Linda Byerly visited the woman at Coachella Valley's State Prison for Women and recorded that interview as well. At one point, the victim testified that she had felt more comfortable relating information with a female detective present.

Under cross-examination, Hutzler was asked about whether or not he had told the victim that there were conflicting statements about what she had said happened. Hutzler testified that he didn't seem them as inconsistencies within her three own three interviews as much as that with each interview, she expanded her information about the alleged criminal incident or volunteered more information. He also mentioned that in cases where there's allegations of sexual assaults, victims feel less comfortable in being interviewed by investigators of the opposite gender.

Next up on the witness stand was the third victim who had alleged that she was sexually assaulted by Forman in 2008. She lived in the Lake Tahoe area and had to travel from her home to Riverside to testify at the trial, something she said she didn't want to do. She became emotional at some points during her testimony and said she had problem recalling details of different conversations she had with investigators or other parties.

Beginning in February 2008, she had stayed with some friends in Riverside and had fallen into a lifestyle that was different to one in her home town. She knew the second victim but said they weren't good friends nor did they have a close relationship.

She had been arrested at some point for producing stolen identification. She ran into a guy named Teddy who she said raped her that month. After, she went with the second victim to her home in Victorville with two men, she showered and changed into the other woman's clothing. She testified that she had cried in the car but hadn't made a big deal out of doing it before they had gotten to the house. They stayed in Victorville for the day and then headed back. She went to Circle 1 store on University Avenue near Comer and she saw police officers there. The other victim pointed out one of them, Forman who sat in his police car.

"That is who I can trust to do something about it," the victim said.

Did you trust him, prosecutor Elan Zekster asked.

"He's a police officer, yes," she said.

She talked to the officer while she held a cup of beer and he let her into the front seat of his squad car with that beer. She talked to Forman about what happened and said he wrote about her information in a small notebook. The second victim had left, she said.

"I don't know where she is," she said.

She testified that Forman said he would take her to go look for her and they drove around for a few minutes. At some point, she and Forman talked about African-Americans. The victim was angry at them, she testified, because she had been raped by one. She made negative comments about them and Forman agreed. Both of them used the racial slur, "n----r" in that conversation.

She told Forman she was going to "jack" a Black man, meaning that she would try to solicit him for sexual acts and take his money without performing them. Forman appeared fine with it, she said. She met up with the guy as he came out of the store and offered to do sexual acts at some point in their interaction and when they were in the car and he showed her the money in his wallet, she grabbed it and then tried to leave the car. The man was angry at her and started yelling, calling her names. She walked back to Forman's car which was behind the man's in the parking lot of the Circle 1. She sat in the passenger side of the squad car even though she had just broken the law. Why wasn't she worried about doing that?

"Because it was okay," she said, "He made it okay."

The man went to Forman and told him that she had stolen his money but Forman didn't do anything but he drove off. The man followed them for a while and both she and Forman knew that, she said adding that Forman had appeared nervous. Forman stopped the squad car at some point in an area with a grassy meridian and palm trees. Two police officers showed up at one point to question her and they asked her where the money was and that there were different places that could be used to hide it. She was asked if she had the money and she said no, she said, because she had given the money to Forman earlier.

After that, she and Forman were alone again in his car. She said he tried to kiss her and she moved her head away to dissuade him. He discussed his marital status and then slipped his hand down her baggy pants reaching the top of her vagina, she testified and she left the car.

At some point, Forman had given the money back to her, she said.

She was cross-examined extensively by defense attorney, Mark Johnson about different aspects of her direct testimony. He asked her about when she said during an interview in July 2008 that she had told the investigators that nothing physically went on between her and the officer. She testified that she didn't have any prior negative experiences with Riverside Police Department officers and that she didn't tell anyone she had an RPD boyfriend. She said she didn't remember parts of conversations or her previous interviews with investigators. The first interview she hadn't been honest because she later testified that it took a while for her to feel able to relate what had happened.

"The first interview I wasn't comfortable telling the detectives what happened," she said.

She was asked about whether she had seen the second victim after the incident with Forman and whether that woman had seen her in the car with Forman and viewed her as a rat and she said no. She testified that the last time she had seen her is when she had gone with her to see Forman to talk about the rape before everything with the officer had happened.

Later, Zekster asked her if she wanted to think about what happened in Riverside County.

"No I hate it," she said, crying.

Like the second alleged victim, the third one was asked questions by the defense counsel as impeachment about incidents surrounding her contact with Forman, rather than the contact itself which is one of the focal points of this trial. Which is a large part of the job of attorneys on cases which is to try to challenge the credibility of witnesses on either side through an impeachment process. Though at times it makes you wonder who's on trial and that's no more true than sexual assault cases and that's no more true than sexual assault under the color of authority cases. The victims have to be impeached by the defense because based on how they described Forman's behavior, it was so outside the realm of how professional officers are supposed to behave that most people would hope that it wasn't true. Because if it is, you have to ask why this errant behavior that some might attribute to a "rogue" officer was allowed to go on for a period of time. That would be the police department's question to answer if it's indeed the case.

There's still a lot of mystery surrounding Forman and his actions involving all three of these incidents. Evidence ties him with all three victims in some form, either through testimony or in the third victim's case, some information scrawled in a notebook found in Forman's locker. And for the third victim, an audio tape recording from one of the officer's department issued recorder places him and the victim in the same location after the alleged jacking of the Black man because apparently their voices are both on it. He has not provided his account of his interactions with these three women and it remains to be seen whether or not he will and if so, through direct testimony or other means.

At some point, the prosecution played that recording taken by one of the officers who responded after the incident with the Black man at the Circle 1. The recording was mandated by departmental policy in cases where the initial contact is self-initiated. The jury were given transcripts as an aid to follow the recording but it was difficult to make out some of the conversation as is often the case with the digital recorders because they pick up quite a bit of ambient noise. But voices which were Forman and another officer, William Zackowski were on the tape along with the victim's voice discussing the money.

The victim testified that the tape had caused her to remember saying to the officers that she needed to be searched by a female officer or in the presence of a female officer.

Her testimony was completed at the end of the long court day and she was excused for the remainder of the trial. Trial testimony was set to resume on Monday, Nov. 30 at 10 a.m.

What's become interesting is that as the case precedes, it seems like there's not much testimony about what Forman was doing during various part of these alleged incidents. When officers testified about responding to the home invasion robbery call at the apartment of the first woman who testified in this trial, there's testimony about which officer did what, where during the several hours that some of them spent at the apartment. However, very little has actually been said about what Forman was doing inside the apartment, even though he had been designated as primary responding officer to the call and its aftermath. Where was he and what was he doing when officers like Zackowski were searching the apartment for evidence of criminal activity? Where was he and what was he doing when some of the male officers began playing and joking with the victim's lingerie inside that apartment? Was he directing the activity by the officers from inside the apartment? Was he engaging in searching the apartment or interviewing any of its occupants? Did he assign officers onscene tasks to carry out? Was he preparing a snack to eat in the victim's kitchen? Perhaps with the sergeant, who there hasn't been much testimony about either even though some officers engaged in some questionable sexist behavior in the apartment.

It's becoming increasingly clear that there's one major element that's missing in this trial and that's the perspective and version of events provided by Forman and it's the defense's task particularly when it's time to present its own case to fill in some of these gaps and render Forman a bit less of the invisible man that he's become. Will Forman be encharged with helping fill in the blanks by testifying on the witness stand himself, or will there be a string of witnesses put on by the defense to do the job for him? Because at some point before the trial's over, these questions are going to need answers and if the defendant provides some, then that might be helpful for the jury's decision in a he said, she said, they said, were recorded (when the recorder was on) saying trial. If he can't do this, then it will provide more questions that need to be answered in some manner or will jurors be left filling in the blanks?

Will Forman testify? There's no requirement that he has to and jurors are admonished usually during the Caljic instructions not to read anything into whether or not a defendant decides to testify during his own trial. Still, it's natural for people to be curious and even concerned with wanting to get that perspective of the case and have questions answered involving that perspective that can only be answered if the defendant in this case, Forman takes the witness stand.

Police officers who are prosecuted for on or off-duty behavior rarely testify in their own defense at trial and most of the time they don't have to, because jurors tend to give them a huge benefit of the doubt, or as it's called reasonable doubt. There are perhaps members of a small group of defendants who don't have to speak for themselves. But even as a former police officer, Forman may be in a position where he has to provide the jury with some idea from his perspective of what kind of police officer he had been, to counter the images of him serving as an accomplice to one woman's criminal action and being involved in sexual assault under the color of authority. Because the jury at this point doesn't really have any other interpretation of what he was doing during the alleged incidents in questions except that provided by the women who have testified given that the police officers have provided so little information about him during their eyewitness accounts.

As for what the defense's strategy is, it appears that at this point, they're not intent on providing any alternate explanations as to what Forman was doing but perhaps they're waiting until it's their turn to present their case. At some point, they appear to be trying to establish doubt on whether the incidents happened at all. At others, they seem to be doing less of that denial and more on painting the behavior as not involving criminal acts.

That was notable when Johnson asked the second victim what the difference was between propositioning an undercover officer for a sexual act and performing one on an officer inside his car which almost makes you wonder if he's trying to impeach the witness by eliciting testimony of whether she's a sex worker or trying to say that if any sexual act occurred between her and Forman, it was consensual and not done with threat of arrest, incarceration or deportation.

Most of the focus of cross-examination on the second and third women was on actions that took place apart from the alleged sexual assault under the color of authority. It seems that the defense is engaging in what's known as the tactic of trying to establish doubt without offering at least at this point any alternative interpretations of Forman's activities. Hoping that the establishment of a general cloud of doubt will be enough to override any questions the jury might have about Forman's actions since they've been more well versed by both the prosecution and defense on the actions of everyone else but Forman.

The general defense extends to the alternative explanations as to why Forman's audio recorder didn't have a media disk inside it when it was confiscated during a a search of his locker. That explanation offered up a scenario of the recorder being placed in and out of a shirt pocket enough times to dislodge the media disk so that it popped out and got lost somewhere. But then the defense attorney takes a line of questioning to explain that Forman didn't know about the missing media disk because he activated the recorder while it was kept in his shirt pocket and thus not visible. Because after all, if an officer kept removing and replacing his recorder in his shirt pocket, it would after all, be more visible than if he did not.

But the problem with that defense of the accidentally ejected and lost media disk is that if the loss of the media disk were isolated, then it might be a plausible if difficult to believe explanation as to the fact that it's never been recovered. However, the missing media disk is just one piece of information about the recording device along with two other pieces of information, that being that there were allegedly 30 recordings that were "missing" meaning deleted from the recorder during February 2008 and no recordings for April. The two months where the three alleged crimes were purported to have taken place. So when you put those three facts together, it presents more of a pattern of issues with Forman's recording device than just the missing media disk. There's likely going to have to be an alternative explanation for both the deleted recordings and the ones that seemingly were never taken and it will be interesting to see what that will be and also whether or not it will provide any contradiction to the scenario for the missing media disk which has already been presented by the defense.

And What of Traffic?

The city appears to be going back and forth on whether or not any more promotions will be coming out of the police department and if they do, whether or not they will include step pay. A while ago, it was rumored that they would unfreeze two lieutenant positions and four sergeant positions. Then when it came out that the department would be bearing $2.4 million of the $4 million budget shortfall, the positions were frozen again. Lately, there's speculation on whether one lieutenant position and 1-2 sergeant positions will be unfrozen. Currently, there are about 15 sergeant candidates and 13 lieutenant candidates, both new and others who had been on lists longer.

One key lieutenant position that will be filled one way or another is the vacant traffic lieutenant position which became empty for the second time in 18 months after Rick Tedesco retired from the police department. Also retiring was Lt. Ken Raya who oversaw several units in the Special Operations Division including PACT, K9 and Youth Court among others. K9 is likely to be returned to the fold of Field Operations while PACT and a tactical unit will be joining SWAT and aviation under the same lieutenant. Since the Traffic Division is a completely different discipline than some of these other units, it requires its own commander. What's not clear is whether or not they will pull a lieutenant from another spot, probably field operations or promote. The former scenario seems more likely but you never know in this city. One wonders if the city even knows.

Former Riverside City Councilman Frank Schiavone resurfaces to respond to controversy regarding the March Joint Powers Authority and Commission.

Next on the list of topics, Bradley Estates? What an interesting op-ed piece that would make!

San Jacinto's Cast of Characters

More is emerging about the politicians and developers indicted in the San Jacinto scandal. One of them was known for her work with children while another had fewer ties to the city.

And what about the local chamber of commerce?

San Bernardino Police Chief Keith Kilmer lauds his stellar police officers.

[Mission Inn after the switch to turn on the lights has been flipped. Warning, this photo clearly wasn't taken by someone of Ansel Adams caliber. ]

[Some of the faux carolers hanging out at the Mission Inn in Downtown Riverside during the annual lighting ceremony.]

Fund raising benefit

Thursday, Dec. 3 at 6-8 p.m. at the law library in downtown Riverside. It's to raise money for the Inland Empire Latino Lawyers Association's legal project.

Toy Drive

' Tis the Season to Give
Please help Riverside City Councilman Paul Davis of Ward 4
collect new and unwrapped toys this Holiday Season,
for less fortunate children in the City of Riverside.
We would like to ask everyone’s help with this worthy cause.
It’s easy. Simply bring a new and unwrapped toy valued at $10 or more
to the Orange Terrace Community Center at 20010 Orange Terrace Pkwy,
or to the King High School Band Room, located south of the Auditorium
on Wood Street.
Toys can be for either girls or boys and for all ages.
Due to some children with breathing problems,
please do not bring stuffed animals.
We will be collecting toy donations through Friday, December 18th.
So, before you go out on Black Friday to shop for presents, please
think about the less fortunate children without a family and without a home.
It's amazing that they live within the same great city as we do,
but how often they could be forgotten.
Remember, they could have a memorable holiday because of your generosity.
For more information, please contact
May Davis at 951-453-3548 or email at
Councilman Paul Davis may also be reached at 951-453-1625 or
Thank You!

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