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 11, 2009

Former RPD Officer Robert Forman convicted on two counts

You guys talk about this guy like he violently raped a woman or molested a child. He did neither of those things. He was a great cop, a great friend, father, etc. It's sad to see the justice system use someone so highly respected in the department as an example. He admitted to what he did, and didn't hide behind his badge or the department. I honestly feel, being someone who testified in his trial, that he should have been acquitted. As far as the IA investigations go, I also feel they should be people who are neutral. They all say they aren't biased, but I know who some of the investigating officers were, and I feel they had it out for him. Bobby-we'll miss you! Hang in there:)

----"Pe Chick 09, on the comment thread at the Press Enterprise Web site

"pechick09, please tell me you're not in law enforcement or in any position of authority,,,,

I assume you are a woman, which makes it even more disturbing you think that, as long as it isn't violent, you think forced sex is acceptable and by an officer of the law no less.

Because giving someone an ultimatum,,, either head or jail, is exactly that, forced sex!

Or are you simply blinded by the fact that “Bobby” is someone you are related to, by blood or by career?"

---"Pull My Finger" at the same site

"A leopard never changes its spots."


Mixed Verdict

On Friday, Dec. 11, the jury returned after three days of deliberation in the case of former Riverside Police Department officer, Robert Forman with a mixed verdict. The jury convicted Forman on one felony count of oral copulation under the color of authority and acquitted him on the second one. There was a hung jury on the felony sexual battery count but a guilty verdict on a misdemeanor petty theft that was related to it.

The Press Enterprise wrote about the verdict even as it missed most of the trial and made some erroneous statement about the misdemeanor conviction of theft being related to stolen beer. That wasn't the case. Actually, that count was in relation to $100 that was stolen from a man who had allegedly solicited a sexual act from the third victim and she had taken his money, essentially "jacking" him and then walked away from him. After the verdicts were read, the former police officer found himself being handcuffed and taken straight to county jail, with his sentencing being scheduled for Jan. 11, 2010. He faces up to nine years in state prison on the two convictions.

Defense Attorney Mark Johnson made an interesting comment about the split verdicts, saying that it spoke to the jurors being concerned about the victims' credibility but that's not really a given and that's not known unless the jurors themselves explained their verdicts. It's possible however that there are other factors that played a role in the varying outcomes and that the penal codes of the various offenses and how they were read might have played a significant role.

As far as the veracity of the second and third victims, it's interesting to note the jury's decision to convict Forman on the misdemeanor theft charge. That involved the so-called "jacking" incident and whether or not Forman played a role as accessory in stealing the $100 with the third victim. The third victim provided testimony on that specific charge and under the law, as an accessory to a crime (at the least) her testimony had to be independently corroborated and in this case, audio recordings from devices activated by two police officers provided some food for thought to the jury in regards to that. However, Forman also testified, of course denying all participation in the theft. In fact, he testified that he didn't believe that she took the money when handling the confrontation with the angry man.

So essentially you had her testimony pitted against Forman's as the alleged victim of the crime didn't testify during the trial and was apparently never located by the police department for its investigation. Apparently by the incident's end, he had calmed down and was embarrassed by his solicitation for a sexual purpose and took off. Yet when it came down to it, the jury convicted Forman of the theft, meaning that in order to do so, it had to believe the third victim's testimony over his own because the collaborating evidence wasn't enough on its own to convict him. So in this case, which party has the credibility issue with the jury? It looks like Forman. It's possible that the jury could have believed the third victim in regards to her being inappropriately touched by Forman inside his squad car, but that it might have come down to the part of the felony sexual battery law which reads as the following.

PC 243.4

(excerpts, state code)

243.4. (a) Any person who touches an intimate part of another
person while that person is unlawfully restrained by the accused or
an accomplice, and if the touching is against the will of the person
touched and is for the purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of sexual battery. A
violation of this subdivision is punishable by imprisonment in a
county jail for not more than one year, and by a fine not exceeding
two thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).

The key words in the text of the law in this case is the word, "unlawfully restrained" or against the will of the person. In her testimony, the third victim said that she had been in the car with Forman and he had attempted to kiss her, she had moved her head away. He then had tried to put his hands down her pants touching the top of her vagina. When he did that, she removed his hand and left the car. Even if the version of events she provided was believed, did the fact that she was able to leave the squad car prove that she was "restrained" at the time it allegedly happened? How did the jury read it?

The hung jury verdict could have been like Johnson called it, a dispute within the jury whether or not the third victim was telling the truth about the sexual battery that she had alleged, in her testimony. But given that the same jury convicted Forman on the misdemeanor theft charge, that's less likely than it might be otherwise. Why would the jury believe the victim on a pretty outrageous scenario involving a petty theft with her and Forman as collaborators and not the alleged sexual battery that took place afterward? Yes, that could happen but even if the jury believed the victim 100 percent on both the theft and the sexual battery, they still might be split. Not so much on the victim's testimony but on whether what she testified to constituted a felony sexual battery. It could be possible that its the line between what constitutes felony sexual battery and what constitutes inappropriate intimate touching but not necessarily that which is unlawful that split the jury into two or more factions.

The jury could convict on the felony sexual battery which requires the victim being "unlawful restrained" or the lessor included misdemeanor that states the intimate touching must be against the will of the victim (without requiring "restraint"). If that's the case, that the jury could have conceivably split along the lines of some members believing it was felony sexual battery and others going, no it's misdemeanor sexual battery then unless that situation was reconciled with a shift in stances, a hung jury would be the final result. Why? Because the only pathway to a conviction of a lessor included charge like the misdemeanor sexual battery would be to acquit on the original charge of felony sexual battery and that's was the testing ground for the split in opinion.

It could also be that the jury believed the victim that the touching took place but wasn't clearly against the will or through the victim being unlawfully restrained or as Johnson said, some members might not believe the victim at all. But the last option does seem less likely than the others due to the decision by the jury to convict on the misdemeanor charge which was supported somewhat but not conclusively by the audio recordings.

But the important thing is that if this woman was a victim of sexual battery that she was able to get away. Did it hurt her chances of a conviction? Possibly. But if she was being assaulted by Forman, her options were very limited because he was a uniformed police officer inside a squad car. Say she had hit him to try to get him to stop touching her in self defense. What would have happened? She would have likely been flung out of that car by Forman, on the ground and arrested for resisting arrest and battery of a police officer and the same agency that had investigated and prosecuted Forman for a criminal allegation which placed her as a victim would have focused on her as a perpetrator. A reversal of the situation which played out instead.

The D.A.'s office has the option of refiling in this case on the felony sexual battery charge to take it to trial again on its own. It remains to be seen if that will be done. This alleged victim has also alleged that she was raped by a man before the alleged incident with Forman. Perhaps it's more than past time for these allegations to be more fully investigated as well as they should have been from the time she reported them to Forman.

The second victim testified that she had gotten into the back seat of Forman's car which is the area where people who are arrested are placed to be transported to jail. The only way out of that part of the squad car is when the officer opens the door and lets a person out. Forman testified that he would never make a person or a woman do anything against their will or force them to do anything. The victim testified that she had been high on drugs and he had driven to a secluded area with trees and gotten out walking towards the rear car door and then told her to give him some head, while blocking the car doorway. Afterward, he had gotten back in the car and not said a word and she became more fearful, even tearing out some of her hair so someone would know she had been there and not feeling the fear leave unti she saw the lights and familiar landmarks of the University Avenue corridor and then the Circle 1 store.

Forman denied that encounter ever took place and in her statements, the second victim had said that he had never threatened to arrest her if she didn't comply with performing oral copulation. And that may have brought up issues with how this criminal violation is stated in the state penal code.

PC 288a(k)


(k) Any person who commits an act of oral copulation, where the
act is accomplished against the victim's will by threatening to use
the authority of a public official to incarcerate, arrest, or deport
the victim or another, and the victim has a reasonable belief that
the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight

In this penal code, what exactly does the word, "threatening" entail? In order to constitute "threatening to use the authority" does that have to be done verbally? There was more testimony by the first victim and three other witnesses who testified to what she had told them about the incident to constitute that verbal threatening was done by Forman. More so than with the second victim (where collaborating evidence was also lacking) but does the lack of verbalization of threats to arrest or incarcerate experienced by the second victim mean that she didn't feel threatened by Forman's authority as a police officer?

Part of that issue of non verbalized threatening was addressed through testimony by Forman and other police officers about the police department's use of force policy which states each level of force used by officers depending on the situations they face and the threats they impose on them. The lowest or initial level of force used by officer is called, the "uniformed presence" which means that simply by showing up on a scene or at a traffic stop in a uniform with a badge, a gun and everything both entail is a show of force by that individual officer or group of officers. The second level is "verbalization" which means that whenever an officer or officers opens their mouths and says anything, including commands of compliance in a situation that constitutes a show of force.

This being said, officers through the first two levels of force show their authority in many cases. They show up at a scene and people leave because they know that they are police officers with authoritative powers, just as people left the first victim's apartment when Forman arrived there several hours after leaving. Verbalization can be a show of force when combined by an officer's uniformed presence even when commands aren't being given. The first victim had alleged that Forman had told her to "follow me" into the bedroom. And it's true that when a uniformed officer says those words they would have a different meaning and level of power than if a civilian said them. Whether or not the use of those words was appropriate or not in that situation. The first victim had already subordinated herself to Forman by telling him the house was empty of people but saying that he could search it anyway. But he didn't really search even by his own testimony walking past a closet door and the bathroom and kitchen and straight into her bedroom.

With the second victim, was it an issue of credibility for her with the jurors or because her testimony made the issue of "threatening to use the force of authority" more problematic for them in their deliberations? It seems clear that an officer can impose the force of authority in ways that are appropriate and also inappropriate through nonverbalization. Even when an officer is asking questions for example and not issuing orders to an individual, that officer is exerting the force of verbalization as how a person responds to those questions is based in large part on the authority displayed by that officer. And when commands are being issued by an officer exercising that same authority, the situation's more clear like it might have been in the case of the first victim and not as much in the case of the second but does it make it unlikely that the second woman's allegations are true or just that it's harder to convict on her allegations based on how the law is assigned by presiding judges, defined through challenges in the court system and applied by juries?

Because there's more than one way that officers can exert their powers of authority. They do it all the time on the job in ways that are appropriate under the definition of their professional role and under state and even federal laws. There are also officers who exercise these powers of authority in less than appropriate and even illegal ways and it's not always easy to define what exactly the role of authority is in certain cases. Sometimes it seems that a lot of attention is paid to the upper limits of use of force under policy and practice and not the lower levels which are utilized by officers on the job much more frequently. And it's at the lower levels that the vast majority of sexual misconduct and sex assault crimes under the color of authority rely on.

But what's consensual anyway with police officers and members of the public? Does it actually exist, in terms of sexual contact? All onduty sexual contact is a violation of administrative policy but not all onduty sexual contact is criminal in nature or are the lines so neatly drawn?

How about the police officer fired from Maywood for being caught on video surveillance tape having sex with the owner (of all things) a donut store who was later hired as interim police chief of Maywood's beleaguered department until an assistant deputy state attorney general threatened to sue the city council if it didn't remove him from that position. Is that sexual misconduct, or a criminal act? And how was it handled both when he was employed and then later when he was reemployed?

What about police officers and their "girlfriends"? The ones they eat with regularly when they work neighborhood beats and spend a lot of time with and have sex with while on duty? What if those women have criminal records or on probation or parole or are undocumented? Is this an administrative violation and/or a criminal offense? Are threats of arrest or incarceration really necessary to keep these women in line or is the dynamic of police officer who could arrest or deport and a person who could be arrested or "violated" enough to make any sexual contact coercive by nature?

What about officers who say they will "look the other way" on illegal behavior if the women will perform a sexual act? Is that an administrative violation and/or criminal behavior? What's the opposite action of "looking the other way" that can be performed by a police officer? It's called an arrest.

What if an officer reportedly is "sexually harassing" a particularly vulnerable population of women? Considering that sexual harassing is so broad a term with different applications, is this an administrative violation and/or criminal conduct?

These are the most common scenarios reported in law enforcement agencies and like it or not, most agencies probably have one or more officers engaging in one form or another even as the vast majority of law enforcement officers do not. They can't be ignored because all of them in general carry a concern about the use of coercion even as in some cases, the reality of it might not be as strong (or could be absent) as in other cases. Even verbal sex jokes and banter that most likely is more of an administrative issue than a criminal one still needs attention because of that dynamic.

In large part because of the perception and role of officers as authority figures in this society as well as the powers of force as defined in departmental policies including that used in Riverside, it appears that there really can't be any avenue in which sexual contact between officers and individuals particularly who are being detained, are on probation or parole or are in danger of being arrested or deported can ever be consensual because the parties involved are not on equal footing.

The line is less clearly drawn for individuals who are not in this situation as even they might be subjected to inappropriate if not illegal misconduct, including verbalization of sexist or sexual comments for example. Women who have been in this situation where officers have made sexual gestures, jokes or comments like asking them if they perform oral sex in the country of their origin, asking for permission to touch a woman's breasts who has implants or even in one account grabbing his crotch and saying, will you help me with this, are often limited in how they can respond even without direct threat of arrest, incarceration or deportation. And the situation is especially complicated when an officer is reported as making those comments in the presence of a supervisor who does nothing, at least nothing while it's going on.

The response of action that seems to have been taken is to either ignore the officer or to play along with them, until they leave. If they object, they think then they'll be in a position where they might be arrested or harassed. Just like the responses of the victims in this case were even more limited when faced with an officer who's engaging in very inappropriate even illegal behavior. That's part and parcel of the use and misuse of power under the color of authority which is even more expansive than using verbal threats to arrest a person if they don't go along with it. It's why one of the alleged victims didn't verbally object or respond to a number of male police officers who were joking about and playing with her underwear in her own apartment including most possibly, Forman.

And for any officers and most likely very few engage in this behavior who think that a woman is supporting that conduct by playing along with it, think again carefully about who has the power and authority in that situation and who's wearing the badge and the uniform.

Are officers aware of the impact that their exercising of the lower levels of force have on the public? Not just those who are being arrested for crimes but on others as well? Of the alleged victims in this case, two of them reported the incidents to police officers weeks later.

At least one had tried to report it to an officer who had gone to a sergeant but the incident didn't appear to pass that point until another officer was alerted to it some time after that. Another victim had told a sergeant several weeks after it had allegedly happened to her. That individual known for his professionalism had promptly reported it once the allegation of misconduct had been made to him. The third victim was approached by investigators from the Sexual Assault and Child Abuse unit after it had received two complaints of sexual misconduct against Forman that were the focus of a probe. She didn't come forward on her own like the two other women did.

Once the police department was made aware of the allegations, it investigated them and then forwarded its findings to the Riverside County District Attorney's office which proceeded with the case all the way up through trial. And in this case, convictions on some of the charges if not others resulted.

But it's cases like this troubling one that bring a lot of issues to light for examination, not the least of which is the power dynamic between police officers and members of the public and the different ways it can be exercised in both an appropriate but also in an inappropriate ways. And what can happen when those lines are crossed.

In other Riverside news, Police Chief Russ Leach said that the crime rate was down while addressing members of the Greater Chamber of Commerce.

How many valid signatures needed in the petitions to recall city council members in San Jacinto? About 3,000 per petition.

(excerpt, Press Enterprise)

"The passions are running extremely high in the city on this," said Brian Hildreth, an attorney for the recall effort. "I suspect that this will qualify for the ballot in a quarter of the time we would need."

At their first council meeting since a being charged in a 155-count indictment, Mayor Dale Stubblefield, Councilman Jim Ayres and Councilman James Potts were served Thursday with notices of intention, one of the first steps in the formal recall process.

The three, along with Councilman John Mansperger and five others, are charged with conspiring to subvert state campaign-finance laws and falsifying campaign reports. All have pleaded not guilty.

When a process server pulled the recall papers from a folder and presented them to the councilmen, they made no initial comment and appeared expressionless.

And in the meantime, in the other hotbed of intrigue in San Jacinto, the community college's police department, former officers say they warned the school board about the police chief.

The first city council meeting held in San Jacinto since the scandal broke and indictments were handed out to four of the five elected officials serving on it proved to be eventful with protests and recall notices handed out by city residents in attendance.

The Riverside City Council will be meeting again, this Tuesday, Dec. 15 at 3 p.m. and 6:30 p.m. Here's the agenda and for a change, there's several discussion items on it.

Finance Committee Watch

As you know, this blog includes regular progress reports on whether or not this important subcommittee will actually meet when it's scheduled to meet. Only one month ago, the Finance Committee had been sitting in idle and pretty much stuffed away in mothballs, having not met since Dec. 8, 2008. Pressure and questions led the current chair, Councilwoman Nancy Hart to have to stand up to explain at a city council meeting why the committee hadn't met in nearly a year while being chaired by her and previously by Councilman Chris MacArthur. She essentially said that she had abdicated that decision to the City Manager's office and then she marched Asst. City Manager/CEO Finance Paul Sundeen who had to elaborate. Unfortunately, though the committee has met, Hart appears to have done like with running the meetings given that Sundeen pretty much does that.

The Finance Committee will be meeting on Monday, Dec. 14 at 2 p.m. on the Seventh Floor at City Hall.

Riverside Ranks Second in Nation for Worst Tap Water

On the cities in this country with the best and worst tap water, guess which city had the second worst tasting water?

Riverside, CA.

Riverside County came in fourth for worst tap water.

I have two reasons. Agriculture and Aerospace/Aviation. No word on whether the city or county have a response to this latest environmental study that's ranked both near the top of the wrong list. But the Press Enterprise is apparently working on a story about it.

But Riverside's well represented on the comment thread including vendors trying to sell Riversiders their designer water which in actuality might be Riverside's own tap water with bells and whistles.

Still, we're very lucky to even have water coming from the tap. Most countries in this world don't have that at all or even access to relatively clean water.

A Recently Learned Fact

Outdoor Wi Fi and El Nino weather doesn't mix very well. Not less you want to see that little yellow triangle on the bottom of your computer screen.

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