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

Friday, December 04, 2009

Forman Trial: Lessons to be Learned by the RPD

The criminal trial of former Riverside Police Department officer Robert Forman has been progressing during the past month inside the Riverside County Superior Court historic facility in downtown Riverside and has culminated with the defendant taking the witness stand. Forman spent several hours over two days being questioned under direct by his own attorney, Mark Johnson. Of course after that round of interrogation, comes cross-examination by prosecutor, Elan Zekster which is set to continue on Monday, Dec. 7 at 10 a.m.

The case was originally forecasted to be sent to the jury on Thursday or Monday but this trial has seen some delays due to illnesses of jurors, presiding Judge John Molloy and lately, both attorneys handling the trial. So now it's likely that testimony will continue into at least part of this week as well as closing arguments and instructions for the jury to take with them into the deliberations process. Since writing about this trial in this blog, I've had conversations with an assortment of readers including elected officials about what's been going on in the other side of Main Street in downtown Riverside as well as the general issues that have arisen from the trial from how officers conduct themselves in the field at crime scenes to the efficiency of the audio recording and downloading process to the Early Warning System and how or whether it tracks officers in the department who are throwing up a red flag or two, or more.

This trial has people talking and much of it is about the department more than it appears to be about Forman at least in terms of the communities in this city.

And then there's some interesting questions which have arisen through testimony and reports in during the trial.

Who Put the Underwear on the Dart Board?

Forman has been interrogated under direct testimony about the notorious lingerie incident which took place in one alleged victim's apartment while police officers were responding to a call for service and searching it. He said he saw it on Watkin's gun belt but didn't see it put on the dart board and didn't notice the dart board until he saw an evidence photograph of the living room.

The other testimony so far involving that disturbing display of sexism in front of a female victim and a female police trainee has been uneven. The female trainee, Megan Edwards (Meyeres) said she didn't know who put the underwear on the dart board but overheard what she referred to as comments stemming from "immature" behavior.

Officer William Zackowski said that he put the woman's underwear on Officer Anthony Watkins' gun belt saw him put it on Officer Lonnie Battest's gunbelt and that he thought Battest put it on the dartboard. Battest said the underwear was on his gunbelt and he wasn't sure how it got there but that it irritated him as it was "inappropriate" behavior and removed it dropping it on the living room floor. Watkins testified that the underwear was on his gunbelt but that he put on a glove and removed it dropping it on the living room floor. He said he never noticed a dart board and didn't see anyone put underwear on it.

None of them mention Forman as having anything to do with the underwear although the woman said that Forman had been the one who had hung the underwear on the dartboard in the living room. The only officer who admitted to seeing it there was Edwards who said the following while on the witness stand.

"I saw underwear on the dartboard but I didn't see who placed it," Edwards said.

So how is it that the male officers were the ones engaged in playing and joking about a pair of the victim's underwear yet the two woman, one officer, one alleged victim, were the only ones who testified to seeing it on the dart board. The women saw it. The men didn't even notice there was a dartboard in the room, let alone one with underwear hanging off of it that they had just been playing with moments before. Well, except for Zacowski who said that he saw Battest put it on the dartboard, the only male officer who appeared to have been not in a joking mood when it wound up on his gunbelt.

The role of the lingerie incident in terms of what followed can't be ascertained through the testimony at the trial especially when different officers are testifying to different recollected versions of the incident. If Forman played a role, that might be very telling in terms of his attitude towards the woman who would later accuse him of oral copulation under the color of authority. But at the very least, it facilitated a hostile environment for the female trainee and provided a poor example to her of the expectations officers placed on themselves about their behavior and probably became one more reason for any female victim of a sexual assault crime especially if it was an officer who did it not want to immediately report it to the police department.

These officers because they work in the patrol division and thus interact most with the public they protect and serve, are essentially the ambassadors of the police department. And the message they send when they act professionally, is that it's a professional agency that employs them as it serves the city. When they don't act professionally including in a sexist manner, they are sending the message that the agency doesn't expect professionalism from its officers and might itself be sexist. Perhaps these officers don't realize that the power they weld goes both ways. They have rights but they also have responsibilities. They have to if their own written use of force policy states that a uniformed presence is an initial level of use of force, closely followed by the use of verbalization including commands. Forman himself testified under cross-examination to what the use of force policy's lowest levels of force entailed and that the words, "follow me" (which the woman alleges he told her before the crime occurred) can take on a very different meaning when used by a police officer.

But the lingerie incident would be disturbing anyway, even if it's an isolated incident and given what had to happen to find out about this debacle, that's not necessarily a given. Most police officers in the department behave professionally but what about the rest?

Allegations of offensive racist comments and joking wound up defining the incident of the fatal shooting of Tyisha Miller in 1998 and the city and department said neither again. Well, that should also apply to sexist behavior like that shown in this case which might wind up defining it in part as well.

Does the Audio Recording Policy Have Any Teeth?

As everyone knows by now, the Riverside Police Department instituted a policy that requires all field officers and supervisors as well as those in the traffic division to activate a digital audio recorder when initiating a professional contact with the public. This policy was enacted as part of the five-year stipulated judgment with the office of former State Attorney General Bill Lockyer and was instituted around 2002. In August 2003, then city manager, George Carvalho declared that a "zero tolerance" enforcement of the policy would take period ending a grace period for officers to adapt to complying with the new policy. The city and department officials including Chief Russ Leach said that more and more officers were complying with the policy because it helped exonerate them against false allegations raised by members of the public. Members of the Community Police Review Commission publicly made similar statements to the public asserting the same thing (though what they said in private was much different). Leach even said that at most a half of dozen officers were out of compliance with the policy several years ago and nearly everyone has said that discipline has been allotted out to officers failing to activate their recorders (absent a public safety exception). But during the Forman trial, you had several cases of officers who failed to activate their belt recordings when required to by departmental policy.

Forman testified that there were times he failed to activate his recorder and other times he deleted recordings from the time the devices were issued out. Dozens of recordings were "missing" meaning either deleted (February 2008) or never downloaded from the media disk (All of April 2008) and the missing recordings continued into May 2008. Now, that's a long time to be out of compliance with a policy that's been in use since at least 2002-03. Forman's excuse for noncompliance was that he was "lazy". But if he was indeed "lazy", what does that say about those in the department who have assured the public that there's no way officers could delete recordings (even with an "erase" button on the device) and get away with it. That if officers did push the "erase" button, then they would get into trouble soon enough. And it's true that there's ways to catch officers who do push "erase" thinking that because a recording shows up as disappearing on the device's external counter that there's no internal record of their action or that the recording ever existed at all.

But if Forman did indeed begin pushing "erase" in 2002, when was he finally caught? Was it while they were investigating the sexual assault allegations in 2008? Was it sooner than that and was any enforcement action taken against him? If that were the case, given that over 50 recordings were missing or deleted in the first few months of 2008, clearly it was ineffective at curbing that behavior, that is if Forman's assertion that he violated the policy over and over again is the truth. He certainly didn't record any self-initiated contacts with any of his alleged victims, even though with two of them, it was required by departmental policy.

Johnson's basing a large part of Forman's defense case on Forman's not complying with departmental policy, which is what Forman testified to when he appeared on the stand. But there's a difference between violating the department's policy by failing to activate one's recording device and deliberately erasing recordings, perhaps believing them to be purged from existence.

There's been much testimony about the use of belt recorders by officers in this case including that to receive a recorder, officers have to read the accompanying policy governing its use before they are given their recorder. But then there's officers who testified who either didn't activate their recorder when required or evidence showed they couldn't possibly have done so. Besides Forman, Watkins testified to not activating his recorder when initiating a professional contact with the second victim who was walking across a road. He initiated the encounter by telling her to get off the road and then a conversation followed.

But his belt recorder wasn't activated during the incident. He later testified to what had taken place during that encounter and had changed the version from what was noted in the defense investigator's summary report. Which was baffling to say the least because you would think that his trial testimony's version of the incident would have been narrated verbatim in the report given that it attributed a possible suspicious motive to the second victim. But there was never any recording and even Johnson was surprised by Watkins' trial revelations and was placed in the unenviable position of having to cast his investigator's reporting in a somewhat negative light.

Then there was the incident where Forman initiated a contact with a man who had been following his squad car. He didn't activate his recorder then and even though the departmental policy requires officers dispatched or responding as backup to a self-initiated contact to activate their own recorders, apparently only two out of five officers (including Forman who was the primary officer onscene) did activate their belt recorders, both of which were played during the trial. Johnson himself used this as a defense by saying that Forman wasn't the only officer who failed to follow the department's policy.

It's not known by the public which officers activated their recorders in that traffic stop (except for Forman who didn't) and which ones did not although one clue is to listen to which officer's voice sounds the most loud and clear on a particular recording given that they are the closest to their recording device which picks up quite a bit of ambient noise. And none of these officers besides Forman who failed to activate their recording device in incidents cited by trial testimony were able to testify to their individual histories of complying with the department's recording policy. It's not clear with even those who failed to activate them if it's an isolated incident or part of a larger pattern of noncompliance. But within this trial is pretty close to Leach's figure cited of a half dozen officers who have been discovered to be out of compliance with that policy. Only it's not six out of about 200 officers equipped with recorders but six out of a much smaller group of officers who testified at the trial. And three of the officers at that traffic stop, were field training officers.

I've received some interesting allegations in my time spent blogging but one of the strangest was one I received in April 2008 about a male officer who had sex on duty with someone he wasn't married to and who had recorded it on his department issued recording device. When I received that, the first thing that struck my mind is that no one could ever do such a thing. Talk about career suicide or fast forwarding yourself towards a job termination. But now after sitting through this trial and watching the foibles of the audio recording policy's implementation even if this is all its problems, it doesn't seem like that a person who did such a thing would ever get caught by the police department. In fact, it's in all probability extremely unlikely.

Even if that person downloaded a recording like that from their recorder, it would likely sit in some database until its purge date unless someone filed a complaint in relation to it.

It's likely that most officers equipped with recorders abide by the policy and then there are those who go beyond it by recording all professional contacts, knowing that it can protect them against false allegations (well, unless you're former Officer Michael Collins). But as long as there are those who don't and the system doesn't pay any attention to officers deleting recorders especially dozens of them until way after the fact, there's a weak link in that accountability system. Because the ultimate question in the Forman case is this, how long was Forman's noncompliance done in the dark until it finally came to light?

And What of the Early Warning System?

The Early Warning System was actually designed and instituted by the police department before it was required to have one under the consent decree. In 1999, the Mayor's Use of Force Panel included the creation and implementation of one as one of its recommendations to reform the department in the wake of the Miller shooting. And so the department did, while working with various parties including the city, department management, the Riverside Police Officers' Association and the Law Enforcement Policy Advisement Committee (LEPAC) a former subcommittee of the Human Relations Commission. In 1999-2000, the committee received regular reports from the department at its meetings.

In 2001, Locker stated in the consent decree that the EWS had to be tightened to two reportable incidents in 12 months (instead of four) and three in 18 months. The department struggled with implementation of its EWS (though not so much as the Los Angeles Police Department which didn't implement its own until about five years into its federal consent decree) because initially almost every officer wound up getting flagged by the early EWS. After the management and supervision personnel became more experienced at noting problematic patterns (as well as more positive trends), the system essentially tracked about a dozen police officers out of nearly 400 at any given time according to several statistical reports given out on its operation during the consent decree. Because the system is internalized and shielded by the state's strict laws on peace officer record confidentiality, the public has no idea which officers are creating enough concern to be tracked. At least not officially because neighborhoods have less official "early warning systems" of their own about officers within their own neighborhoods.

Earlier this year, one of the officers (though he was a distant second to another officer) on the EWS of many people in Casa Blanca was arrested on several armed robbery counts. The officer in that same neighborhood who by far gets the highest number of complaints of all kinds of behavior is very well known as well by both the community and the police department. Which is interesting because there's some police officers who seem to be very well liked who work there or who have worked there. Same situation with the Eastside and other neighborhoods and the officers in any neighborhood who do the most outreach tend to get the most positive reports.

But did the Early Warning System play any role in Forman's policing career and should it have if it didn't? And what role does the EWS play exactly, given the arrests of two Riverside Police Department officers in a 12 month period? That's a question that comes up quite frequently since this trial has begun. And what if the process of handling police officers placed in this system. How does it effectively address problem behavior in a way that prevents it from being more significant? Like in the case of former Officer David Reeves, jr. who was apparently addicted to pain medications for some duration during his employment? At some point in his case, the department asked for a urine sample to test for drugs and Reeves resisted, which ultimately led to him filing a lawsuit against the city not long before he was arrested.

These and other questions have been asked by people who've read this blog or who've been following the coverage in the Press Enterprise. In these cases, these may only be smaller glimpses into the larger picture of a situation but since the public is allowed no explanation or information about how these mechanisms work or how they effectively curb misconduct (or reward exemplary conduct), the public is left with nothing but the negative parts of the situation especially when they overflow into the public arena in what might be an embarrassing or even shocking kind of way such as in the cases of Forman and Reeves.

And what role do supervisors including frontline supervisors play in the EWS when it comes to whether or not officers they supervise getting placed on the list? Forman testified several times at trial that he was used to working alone, due to his three year stint in the POPs division. How alone was he anyway? And was that a good thing?

The RPD's Strategic Plan Survey

It's available online here and it's for everyone to fill out and send in as part of the different methods the department plans on using to obtain input from the public on what they wanted to see included in the next five-year Strategic Plan. The current one in place since December 2004 is set to expire later this month. Some unfortunate static from City Hall apparently blocked the development of this plan for a while but it's on track to go to the city council next year, perhaps March in some format.

If you can't use the online survey, you can pick up a hard copy at the front office of the Orange Street Police Administrative Headquarters on 4102 Orange Street in downtown Riverside.

I'm still doing some research before submitting my suggestions for the survey. Regular progress reports on how the development of the Strategic Plan is going (or not) will be posted on this blog. Unfortunately, due to the dynamics of this city, it's very important to be vigilant to ensure that it stays on track. Lest there be an unfortunate repeat of the derail of post-consent decree 2006.

Economist John Husing defends the cutting of developer fees. Because someone has to do so for Riverside County.

Four San Jacinto city councilmen who were indicted as part of a corruption scandal not surprisingly are facing recall efforts. Two of the defendants charged after a probe of that situation have plead not guilty.

The Press Enterprise Editorial Board explains why when it comes to ethics in San Bernardino County's government, a gesture is not enough.

The people in Menifee have different opinions on how city council people should be elected, as shown by two conflicting petition drives currently undergoing signature gathering. Menifee's not been a city that long and things are already hopping!

How will Colton dig its way out of its financial meltdown?

Corona gets a new police station at last.

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