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, December 08, 2009

Closing Arguments in the Robert Forman Trial

Closing arguments were heard at the end of the trial involving former Riverside Police Department officer, Robert Forman who had been charged with three felonies involving sexual assault and misdemeanor theft. All of these crimes allegedly took place while he was onduty as a police officer in February and April 2008. The jury had listened to testimony and looked at evidence provided by both prosecutor Elan Zekster and defense attorney Mark Johnson for almost a month (minus some days off for illness). Each side was given a period of time to present their closing arguments (just as they had been when giving their opening statements) and Zekster was given an additional chance at rebuttal because his office had the burden of proving its case beyond a reasonable doubt to the jury which now holds Forman's fate in its hands.

The room was more crowded with individuals from the police department's Internal Affairs Division, its police union and chief's office as well as Forman's family members and new prosecutors and veteran defense attorneys. Even one of the city's deputy attorneys sat in for a while.

Prosecutor's Closing Argument

"They are our heroes..."

That's how Zekster started his final arguments, telling the jury that police officers put on their uniforms every day and went out to ensure public safety, often risking their lives.

He had a power point presentation which read, People vs Forman and then underneath it, stated the Irresistible Mr. Forman. It served as a backdrop as he further explained that when people need assistance and help, they call the police, first and reiterated that they were heroes.

"But in April and February 2008 the man that sits behind me was no hero," Zekster said, "He was no hero. He was a criminal."

He said that Forman had lied during his testimony and then listed all the instances where he said that Forman hadn't told the truth during his testimony on the witness stand. Forman lied about when the Black man who had the money stolen by the third victim hadn't approached him until he pulled out of the driveway of the Circle 1. He then liked about the man grabbing his identification out of Forman's hand and about believing the third victim 100 percent.

The third victim was calm on the audio recordings of the incident with the Black man played in court. She didn't have the money, Zekster said, Forman did.

Forman had testified that he had enjoyed the third victim's company.

"He's right," Zekster said, "He did enjoy her company. I believe that."

Johnson called for a side bar with the judge who denied it but granted a motion. Zekster continued by saying that Forman had enjoyed the third victim's testimony and had called her several times.

When Zekster talked about the second victim, he said that Forman's testimony about her contradicted that provided by Officer Henry Park. Forman had said that he had taken Nadia to Park and Park said that he had asked for Nadia and Forman had taken him to her.

Then Zekster moved on to the first victim, the woman whose apartment had been the subject of what had initially been a home invasion call.

"All he did was make her a victim again," Zekster said.

No other officer had been asked by the first victim for assistance but Forman. Why didn't he tell other officers about going back to her apartment? Why didn't he call her on the phone and ask her if she needed assistance? And when he had arrived at her apartment, the other individuals had left because the police officer had arrived with his uniformed presence.

"Why in the world did he stay?"

He asked her if there was anyone left in the house and she said no, but you can search it. So he headed straight to the bedroom past a closet he had sitting close to several hours before. Then Forman had said that the woman had closed the blinds, but there were no windows with blinds in the bedroom.

Then Zekster discussed the missing recordings and media disk. He asked the jury if it was a coincidence that the recordings were missing during the periods of time in 2008 when the alleged crimes occurred. As to the missing disk, Forman hadn't told Sgt. Julian Hutzler (who discovered the missing disk during a warranted search of Forman's locker) that it kept falling out or he had problems with it.

The first victim would have no reason to lie. Why would she want to come into a courtroom and talk about something embarrassing? There was no evidence she knew the other women, her testimony had been collaborated through other witnesses and she had been afraid of Riverside Police Department officers.

"She told us she was scared and Officer Mann confirmed it," Zekster said.

Her testimony about being threatened with arrest matched that provided by Officer William Zackowski. Zekster said that not all the witnesses he had called to the stand were "People's witnesses". And why would she target Forman if she had been upset, rather than Zackowski who Zekster said had beent the "biggest jerk"?

Zekster added that witnesses Maribel Manzo, Steve Wells and Jeff Cheney collaborated her testimony.

When it came to the second victim, Zekster asked, why pick on the cool one, the one who let her get away with anything? She had admitted to committing criminal conduct.

"Remember his [Johnson's] client knew that," Zekster said, "He chose them."

Zekster said that Forman lied about the third victim, who had been reluctant to come forward. She had been getting strange phone calls at night and had been glad there was a tape recording of the incident with the Black man because who would believe a person like her against someone like him [Forman].

Defense Closing Argument

Johnson also had a power point presentation and began his closing arguments by apologizing to the jury for his demeanor during the trial when he questioned some of the witnesses including the alleged victims. And talked about the prosecution's stance of "liar, liar pants on fire" several times during his argument.

"The charges against Robert Forman have to fail ladies and gentlemen," Johnson said.

He told the jury they had to look at misstated testimony with distrust and then he went through all three incidents which led to criminal charges.

About the first victim, Johnson said that there was no dispute about the act of oral copulation taking place. But he said that none of the officers had threatened to arrest the first victim. Except for one made by Zackowski in the bathroom. Her claims of multiple officers threatening her with arrest were not substantiated through the testimony.

"What did she have to worry about," Johnson said, "No evidence that Forman was privy to that single intimation of arrest."

He said the first victim refused an opportunity to be interviewed by the defense investigator and had an attorney present when she testified. Then he talked about the morning of April 18 when Forman had returned to her apartment. He said there were drug dealers there which meant that the first victim had a motive for misdirection. He said that her testimony contradicted that of Manzo who had said she had come to her apartment out of concern because she hadn't returned her phone calls.

He called the first victim an "opportunist". Forman's behavior "though inappropriate was not criminal".

About the second victim, Johnson said that there was no evidence she was in the car, had spit out semen or had pulled out hair. She wasn't worried about being taken to jail at all.

"She continued to kick it with him," Johnson said.

Sgt. Phil Neglia had testified that when he had been told allegations of misconduct by the second victim had said she seemed matter of fact about it. And that she had initially said that she had given Forman a blow job and he had given her $50.

"Nothing more than business as usual," Johnson said, noting her prostitution.

He then said she was an armed robber, a thief and knew Bryan Lacey.

"I'm going to tell you she's a no good liar," Johnson said, "And she is."

The third victim had made inconsistent and conflicting statements, Johnson said. Saying that the officer had blond hair and blue eyes at first. She tried to contact Forman while she was in custody some time before July 25 (as stipulated by both attorneys to the jury before closing arguments). She didn't mention any intimate touching by Forman until a later interview.

"Her story continues to grow," Johnson said.

Her story about jacking the man continued to change. At first she said she didn't do it and then she said Forman didn't help her. She said that the second victim had helped her and then she slept in a car and the second victim called her a snitch. And she said she had given the money taken from the Black man to the second victim at some point in an earlier interview.

Prosecution's Rebuttal

Zekster gave his rebuttal and said that Johnson had said there were no individuals who had testified of being treated unfairly by Forman while he was a police officer. But he said there were three women who had testified to that when they outlined their allegations of his actions against them.

He challenged the defense attorney's presentation of bits and pieces from interview transcripts and reminded the jury of how he had to during the trial bring in the other parts around what Johnson had asked about during his questioning of witnesses. Zekster also said that Johnson had just done the same thing while stating certain sections of laws and jury instructions.

He said that there were three women who came forward and how many victims did there have to be and how many excuses before Forman was told no?

"We are in exactly the place Robert Forman wants us to be," Zekster said.

He called Forman's story about what happened with the first victim, in terms of it being a consensual encounter "ridiculous".

Zekster said that what struck him about the trial was when Officer Richard Glover was testifying on the witness stand that he never saw Forman under the influence of drugs while working and when asked about the third victim being under the influence, he said he didn't test her. Did he test Forman, Zekster asked.

Court recessed for the day and the jury is set to return to court in the midst of the civil calendar on Wednesday, Dec. 9 at 8:30 a.m to finish getting the remainder of their jury instructions. Then the jury is set to deliberate on the four charges against Forman.

It's been interesting and difficult at the same time to blog about this case and no, I haven't been "chomping at the bit" about it as one anonymous individual stated. As I stated after his arrest in autumn of 2008, I was not really surprised who it was and I suspect that I'm not the only one. Just like the arrest of former officer, David Reeves, jr. wasn't too surprising either. That's in contrast to how surprising it would be to hear the same about a majority of police officers in the department. The ones who get arrested tend to have other problems within their employment before it happens. That's been a case with a few of police officers arrested for misconduct in the Riverside Police Department throughout its history whether they were arrested twice in a short period of time like former officer, Phillip Graham as happened in the summer of 1997 or Eric Hamby, the last Riverside Police Department officer to be tried in court for sexual battery committed while a police officer. He was acquitted by a jury but not rehired back by the police department, though a relative of one of his alleged victims said he might still be or had been working in law enforcement in Southern California.

Even the former officer who was acquitted of manslaughter charges at a federal trial, Jose Nazario, had been recorded by the NCIS as having told another United States Marine Corps sergeant that he had routinely beaten up "criminals" and then came up with a reason to do so after the fact. The content of this transcript was discovered by a reporter with the Wall Street Journal who wrote about it. Was it the truth or was it machismo on display? The department was left to try to answer that question when it was asked them by a reporter at the nation's most popular newspaper in terms of circulation. Though Nazario reapplied, he was not rehired by the department.

Whether it's a history of a high number of complaints, or particular types of complaints, an eventual arrest for alleged criminal conduct might be part of a disturbing pattern of behavior. Even former officer, Adam Brown was removed from his assignment as a school resource officer and placed back into patrol about a year before his arrest on federal child molestation charges. It's not something that the majority of police officers face, but a select few. And those officers don't live in a vacuum. That's part of the reason why the department set up an Early Warning System to flag officers who are beginning to show potential patterns of disturbing behavior. Whether any of these officers who were arrested were flagged prior to that by this system is not ever going to be known by the public as only the department is privy to that information.

And the red flags that show up in administrative inquiries or that lead to administrative investigations are separated from criminal investigations because of Fifth Amendment rights held by police officers. In administrative investigations, officers have to waive these rights so they are given something called the Lynberger admonition that nothing they say in an administrative interrogation (which is most often compelled upon threat of termination of employment) can be used against them in a criminal proceeding though this applies only to the state justice system, not the federal counterpart.

As some people said, there were quite a few red flags that appear to have been thrown up involving Forman including the disturbing issues surrounding his department issued audio recorder. The missing disk which his attorney through questioning seemed to say that he must have lost without knowing it from taking it in or out of his pocket but then later, it was because of placing his money slip in his pocket which held the recording device.

But depending on which version of events you believe, it's still been very disappointing behavior by a police officer. Whether you believe that Forman's being honest in his confessional about slipping and engaging in oral sex with one of the victims or you think he's choosing between the lessor of two evils. Of course, if there are victims here, what's worse, to have the perpetrator deny the harm he's done or to say you asked for it?

It's ironic about all this testimony about Forman being recognized as a uniformed officer (which he was during the time the alleged crimes occurred) because in the 11 years he's been with the department, I only remember seeing him once and not in a patrol uniform. It was several years ago, in a fast food restaurant on University Avenue and he wasn't dressed in a uniform. He was dressed like a unit officer, in plain clothes, with the holster and the last name stitched on his shirt. It was a time of much gang violence in the Eastside and a man from Oklahoma had been shot by gang members while pulling off the highway on a road trip to buy gas in Riverside. He was shot while doing that near Zacateca's restaurant. As is often the case in the Eastside, there's more impromptu community meetings and "engagements" (by the Eastside Think Tank and other organizations) when there's gang violence so seeing an officer dressed up like they were in a tactical unit wasn't unusual. He just looked like another member of such a unit, a bit thinner perhaps than he is now.

Still an arrest of a Riverside Police Department officer is still shocking when it happens, but not always the individual arrested. Allegations against law enforcement officers for sexual misconduct are very rare, much more so than they were in the 1990s. In fact, one woman said that in the 1990s, a former female police officer kept a list of male officers who had sexual relations under the color of authority or otherwise (assuming that exists) with female sex workers. And during a time after the shooting of Tyisha Miller in 1998 when complaints were taken involving allegations of police officer misconduct, some of those who showed up to ask when the meetings would take place were female sex workers. They were provided information about meetings that took place in churches where people could provide their accounts and be videotaped, with these recordings being sent to the Department of Justice which would soon announce it was investigating the department for patterns and practices of misconduct. But none of them showed up to the meetings.

Apparently, when Chief Russ Leach was hired in 2000, he had instituted some form of "zero tolerance" policy for this type of misconduct. And the numbers of officers rumored to be involved in this misconduct dropped. There was a huge turnover in the Riverside Police Department in the earlier years of this decade and many officers including some questionable ones (like an officer with a history of excessive force allegations along with the Confederate Flag tattoo), a Los Angeles Police Department "Christopher Commission" officer and another LAPD lateral who's now serving or has served a felony assault conviction in jail in relation to an off-duty incident. Many better, more professional officers came in to replace them. The police department of the 1980s and 1990s had a myriad of problems including inadequate supervision of officers (as alleged in the stipulated judgment by the state), no early warning system tracking problem officers or conducting consistent performance evaluations on officers. Perhaps addressing these issues facilitated an environment which helped discourage the incidence of sexual misconduct under the color of authority.

Maybe I should have been surprised. But what's become clear in this trial is that showing is much better than telling and what has been on display in my mind is that when it comes to cases like this, the person who's on trial isn't really the defendant But that's how it's been with rape and sexual assault cases for decades and it's taken a long time for the criminal justice system to catch up with bringing the investigation and prosecution of those crimes into the modern era. Rape by force by the stranger in the bushes came first. Then acquaintance rape, then marital rape and then lastly, rape under the color or power of authority. And in a sense it's the defense attorney's job as Johnson stated to do it this way. And that might be, but then with that comes an answer to any questions about the reluctance of women who experience these crimes from coming forward.

A new gang intervention program is used in Riverside.

(excerpt, Press Enterprise)

Its principal said she supports any tool giving children more of a long-term chance to succeed at school -- reducing the risk of one of the biggest pulls into gang life, dropping out.

"It's more character development," said Longfellow Principal Melanie Maxwell. "We're building the skills to keep them out of gangs."

Dealing with children at such a young age, Maxwell said the after-school staff will focus less on written exercises and explicit images of gang life and more on social skills.

Building responsibility and decision-making ability is a goal, Maxwell said, such as teaching a child, "I don't have to become physical to solve a problem."

By reaching out earlier, officials believe they will better equip children to resist the strong pull often coming from their own homes, where long gang histories may exist.

A Jury Verdict

Jackson Chambers Daniels, Jr. was convicted for the second time of the 1982 murders of two Riverside Police Department officers.

(excerpt, Press Enterprise)

Daniels, a former death row inmate, sat quietly in court Tuesday in a wheelchair as a clerk read guilty verdicts for first-degree murder, unlawful possession of a firearm and possession of cocaine.

Jurors also found special circumstances to be true that Daniels committed a crime to avoid arrest, committed multiple murders and killed officers in the course of duty.

Family and friends of the slain officers sat in the audience, some crying after the verdicts were read. Riverside police Chief Russ Leach also sat in court alongside retired officers who had worked with Doty and Trust.

Leach said everyone has been waiting to put this case behind them.

"It's just been a long time coming," Leach said. "Maybe today, it's one step closer to closure."

Jurors are scheduled to return to court Monday to begin the penalty phase of the trial in which Daniels could be sentenced to death.

A Riverside County Grand Jury report details one of the indicted person's involvement in a housing project.

Two defendants who are married have entered not guilty pleas while some of the defendants are asking for publicly assigned legal counsel.

Meeting Notice

The Community Police Review Commission meets on Wednesday, Dec. 9 at 5:30 p.m.
This agenda will be discussed or fought over. Which, remains to be seen.

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