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

Monday, November 30, 2009

Forman Trial: The People Rest; Now It's the Defense's Turn


Former RPD officer, Robert Forman testifies and denies involvement in two incidents and said the third was consensual. More information to come.

The Trial of Former RPD Officer Robert Forman

Day 10

Riverside Police Department Sgt. Julian Hutzler testified further on the stand as part of the ongoing criminal trial involving former police officer, Robert Forman who has been charged with three felonies and one misdemeanor. The prosecution was heading into the home stretch while presenting its own case and after it rested, then Forman's attorney would put on the defense.

The focus of his testimony involved written records of CAD reports, the downloading of digital audio recordings and cell phone records tying Forman with the third victim who had testified last week.

Hutzler said that the Computer Aided Dispatch reports detailed information about officers who were sent out to respond to either an initiated contact or a call for service. Or as Hutzler testified, any activity by the police department that goes through the communications dispatch. He explained the abbreviated codes and designations that were included both in the CAD reports as well as the listings provided of the history of recording downloads generated from Forman's belt recorder.

One of the incidents included in the list of downloaded recordings was the February 15, 2008 incident that was referred to on that list as a civil problem and involved an altercation between the third victim and an African-American man over money that she had allegedly stolen from him with Forman's assistance, according to her testimony. The location of the incident had been Mission Inn and Eucalyptus Street. According to the CAD report, Forman had been the primary responding officers and at some point a call for backup had been issued and other officers including Felix Medina, Richard Glover, William Zackowski and his trainee, Danny Suerez responded.

Hutzler also testified about the database known as CLETS and said that the third victim's name had been "run" on Feb. 20. The CLETS provides different screens containing information on the individual in various areas including DMV records, restraining orders, violent crimes and other criminal offenses. When Prosecutor Elan Zekster placed it on the Elmo, presiding Judge John Molloy called the lawyers into chambers. Faux pas, maybe but it showed the jury how seriously the confidentiality of these records is supposed to be taken.

CLETS information is considered confidential and access to it is very limited, including by law enforcement officers. The CLETS information on the third victim was withheld from the jury during further testimony by Hutzler.

Forman had run the CLETS on Feb. 20, 2008 at 3:52 a.m. according to departmental records presented in court. Also warrants were written for phone records for the third victim and for Forman's cell phone. The phone records showed one phone call made from the third victim's cell phone to Forman and then multiple phone calls made by him to her cell phone as well as a land line where she was staying. The phone calls to the land line phone were blocked by *67 according to the phone account records whereas the phone calls to the victim's cell phone were not blocked in this way. What was the reason for that, because the victim hadn't given him her land line phone number? If this is true, how did he obtain it? And why does it appear that he started calling her on her land line at around the same time or not long after he accessed her CLETS file?

Ever file a complaint and wonder where those hang up phone calls come from especially those with interesting sound effects like oh, dispatch noise? Well, most of the time it's perhaps coincidence or telemarketing calls but it's interesting how testimony in an instance like this can make one wonder. What happened in this case? Did he ever speak to her and if so about what? Or did he simply call her repeatedly in an attempt to keep tabs on her and hang up after a period of time? In my case, the phone calls did cease after the investigating sergeant was notified about them. But was this person even aware that he was trying to call her? If she wasn't communicating with him (and so far beyond the first call, it doesn't seem like she called him back from either number), then she might have had no idea that he was calling her.

Information written in a notebook taken from Forman's workplace locker showed the victim's cell phone number but no land line number. How he got the information on this phone number is not clear.

The phone calls appeared to have started on Feb. 20, at about 3:47 a.m. on the same morning as the CLETS report was generated. They continued onward into March 6, 24 and 28 on both phone numbers linked to the third victim. Phone calls were apparently made to the victim's phone number on days that Forman wasn't working.

Hutzler also testified about the process of downloading recordings from the officers' department issued digital audio recordings into the mainframe database of the police department as well as the documentation created on the downloads done by each police officer. Documents of Forman's own history of downloading recordings (or not) were displayed while Hutzler testified. He spoke about whether or not the recordings themselves could be erased and whether or not that removed all trace of their existence from the memory of the recording device. The answer is yes to the first, no to the second as it turned out.

"You can erase it off the media disk but you can't reset the clock," Hutzler said.

What that means is that even if the officer believes he or she might be erasing a recording off of their media disk inside their recorder, that it leaves a trace behind that it existed and individual recordings are tied with specific numbers that allow employees to differentiate between which recording belongs with which incident.

In February 2008, about five recordings were erased earlier that month which was shown by the sequence of file numbers being interrupted and some of the numbers were missing. Later in the month, about 24 file numbers were missing, showing that those recordings had been erased.

In April, there weren't any files downloaded, meaning that there was not a single recording downloaded during that entire month. However, when May's list of files are shown, the sequencing numbers have skipped about 20 head, meaning that there were at least that many recordings made during the month of April but that they were never downloaded. Whether they were erased or simply were never downloaded from the media disk isn't clear. But they are so far, unaccounted for, bringing the total to at least 50 recordings that are missing. But then there's also recordings missing according to the download report.

About three recordings were missing in early May as well including one from May 7 between 1-1:30 a.m. and recordings on May 8, 2008 as well.

Departmental policy requires that field officers are required to turn on their belt recorders any time they initiate a contact with the public. In addition, any officers who are responding even as backup to an officer who initiated that contact are required by policy to activate their recorders as well. Yet during the month of April 2008 when Forman wasn't downloading any recordings the entire month, there were at least a half dozen or so "traffic" stops which are pretext stops which are initiated by patrol officers. When the policy was mandated under the stipulated judgment through the State Attorney General's office, the target of this policy were specifically pedestrian and vehicle pretext stops in part because there were allegations raised by the State that the department was violating state law when conducting its pretext stops.

The prosecution played the second audio recording of the incident involving Forman, the third victim and several other backup officers involving the incident where an unnamed African-American man was upset at the victim for allegedly taking his money without performing a sexual act. Even though all five officers were required to activate their digital recorders, only two of them did. What's heard on it is that the only thing that can be done is to take a report. But ultimately, the call was cleared as a "civil problem" as listed on the Forman's CAD activity sheet and no report was ever taken of it.

Forman's defense attorney, Mark Johnson argued that Forman wasn't the only officer who didn't comply with the department's audio recording policy as evidenced by the failure of several officers in the incident involving Forman and the third victim to follow that same policy.

Officer Richard Glover testified next. He had been employed with the department for about four years and 10 months and had worked with Forman during 2008 on the graveyard shift. On Feb. 15, 2008, he had responded to a call for backup to Eucalyptus and Mission. In this case, the call for backup was issued by the primary officer at the scene, Forman. Glover said that when he had arrived, he had seen a White or Hispanic woman and a Black man of medium build. He heard from Forman a brief description of the incident including that Forman had been talking with the Black man who Glover said, was a bit upset. Did he remember what happened?

"Not real clear," Glover testified, "I remember bits and pieces of it."

Under cross-examination, Glover said that Forman didn't appear to be hiding his activities and that he didn't see the woman doing so either. She appeared to be connected with the Black man. He testified that he had received training in drug use recognition and that he didn't believe that Forman appeared to be under the influence of drugs. If that had been the case, he said he would have been obligated to report it to a supervisor.

He hadn't tested either Forman or the woman for drug intoxication and he didn't remember ever seeing any money.

The prosecution soon rested its case and the jury was sent on an hour long recess while Johnson submitted a motion to dismiss all the charges against Forman. He argued that the petty theft charge should result in an acquittal because the victim was at best an accomplice to the crime and thus could serve through testimony as sufficient evidence unless there was independent evidence. He argued that the sexual battery charge involving the third victim should be dismissed because she was free to leave when she wished and made the same argument with the second victim.

Zekster argued that the petty theft charge was evidenced independently by the fact that Forman said he would take a report but never did as well as the fact that he was present at the scene and the money was never recovered. Concerning the three felony charges, Zekster told the court that Johnson forgot that Forman was a police officer and his authority constituted the sense that the women wouldn't feel free to leave.

Molloy told the attorneys that he would take the petty theft case under submission but that ample evidence had been shown during the trial to leave the decisions on Forman's fate on the three felony charges up to the jury. His argument was based on the testimony by two victims that Forman had driven them in his squad car for a period of time before the alleged assaults under the color of authority or sexual battery and stopped at unfamiliar locations.

And with that decision, after the break the defense began to present its own case. It began by calling Sgt. Paul De Jong to the witness stand.

De Jong has been a law enforcement officer with several different agencies including the Riverside Police Department for a period lasting about 27 years. He was hired by the Riverside Police Department in 1997, promoted to detective in early 2000 and then to sergeant. He worked in field operations for a period of time before being transferred to the family violence center downtown where he supervises the domestic violence unit.

On April 18, 2008, he said he responded to the home invasion robbery call in downtown but it took him a while to get there because he was far away from the location. By the time he arrived, there were officers along with Sgt. Ruddy already on the scene and they had surrounded and contained the scene. He had contact with more than one woman at the residence, including the first victim and at some point went inside the apartment where he remained for about 15-20 minutes. The entire time he was there, the victim was seated on a couch or a chair in the living room and he had no recollection of exactly what her demeanor had been as he didn't pay much attention to her. When asked if he said she would be arrested, De Jong did have some memory of that.

"I don't believe I ever told her she was going to jail," De Jong said.

De Jong said that he had talked to Forman and when asked if he had been trained in drug use recognition, he said that he had been. He didn't see that Forman was high but said he wasn't looking for signs.

"I never noticed that," De Jong said.

He said that the woman had been viewed as a possible victim at least initially.

Under cross-examination, De Jong was shown a picture of the victim and didn't recognize her. Nor did he remember very many details of the police incident that he had responded to involving her apartment. He said that he had told investigators during an interview that it was his belief that the victim had been arrested.

De Jong said that he had left before all the officers had left and that Forman who had been in charge of the investigation of the incident had remained there after he had departed. His officers on his shift were experienced and he trusted them to do their jobs. When asked about how he would have handled the situation with the syringes that were found in a bag in the victim's closet, he said that they would have been taken as evidence unless there was a legitimate reason to use them. He said that he wouldn't have left them or the spoon with residue on it found right next to the bag (which he said could be evidence of the use of heroin or other drugs).

"Yes, it should have been collected," De Jong said.

Would he have left the syringes with an individual on felony probation? I wouldn't, he testified. He did say that the woman was made aware of things she could be arrested for by someone. When asked again if he thought she had been arrested, he answered.

"That's what I thought, yes," De Jong said.

Would the drug paraphernalia found have been enough, he was asked.

"If I were the investigating officer, it would have been enough for me," De Jong said.

He was asked why when he reviewed the report the next day, he hadn't gone back and said that the victim should have been arrested. He said that he would have addressed the issue with the reporting officer. But later said he had to face a high quantity of reports each shift that he worked.

The defense is actually in the process of eliciting direct testimony from its second witness, a police officer and former trainee of Forman's but already there's the sense that Forman's own witnesses are not exactly working for him or even testifying for him. The sergeant testified that he would have arrested a woman that Forman did not and the trainee testified that he was a strict taskmaster when it came to including details in reports, which simply draws more attention to the times when Forman wasn't quite so...meticulous.

Trial testimony continues today in a trial that possibly might reach the jury for deliberations by sometime Thursday, even though the courtroom is on Wednesday.

'Bad Apples'?

Rumors in one area of the city have a certain police officer moved out of that neighborhood because of an investigation involving an officer he worked with. Whether that's true or wishful thinking on the part of the area's residents, isn't clear. Seriously, if the rumor mill is true, that's the least of his problems in terms of his behavior. Properly supervising an officer can go a long way, though. Is that the case here?

The majority of the Riverside Police Department's officers are hard-working and conscientious and risk their lives on occasion as law enforcement can be like flying a jet airliner. Hours of work, filling out lots of paper, lots of interpersonal communication and following procedures interspersed by periods of excitement or fear and anticipation of when those moments take place. Which makes it harder when one of them goes "rogue" as some call it and it seems that inadequacies or deliberate actions to subvert the department's accountability mechanisms aid and abet them in misconduct. That's why it's difficult to blame it all on "bad apples". There's been a lot of discussions about these so-called "apples" including two RPD officers arrested in the past year on criminal allegations and about any other officer who might be skirting proper behavior. Believe it or not, communities, neighborhoods and precincts do know the difference between good officers and those not so good. Names of both come up in nearly every neighborhood in this city.

One way to encourage good policing would be to recognize it officially when it takes place by restoring the "public safety officer of the month" award at city council meetings. One caveat, just don't give it to an officer who was suspended on misconduct committed not long before receiving this award as happened several years ago. And if Chief Russ Leach, the department or city wants a list of officers who do good work with communities to protect and serve them, there's plenty of people in the city to provide them with lists to draw from.

A new bicycle path in Riverside?

More information into the corruption probe involving San Jacinto's politicians and players.

(excerpt, Press Enterprise)

"We've already got indications that the people that we've interviewed have already been coached and spoken to by some of our suspects in the case," said Kim Robinson, a district attorney's investigator, to Riverside County Superior Court Judge Helios Hernandez, according to transcripts of an Aug. 19 closed-door meeting.

At the same meeting, Elaina Bentley, chief deputy district attorney with the special prosecutions unit, expressed concern that investigators might lose "documentary evidence that could be destroyed if the individuals knew they were going to be targeted for potential investigation."

The Press-Enterprise sought release last summer of five search warrants issued in April. They covered the office and home of San Jacinto Councilman Jim Ayres and the homes of two businessmen, all indicted earlier this month in the case, and the home of a bookkeeping business owner who was interviewed in the case, according to court records.

Inside Riverside writes about the trail of Supervisor to be John Benoit's campaign funds.

The city of San Jacinto asks to postpone a key annexation hearing.

HazMat Alert

[Police, Fire and a Hazardous Materials Team appeared at City Hall in Riverside, closing down the portion near the utilities payment center and the women's restroom after a suspicious item was discovered containing white powder by a city employee. It was collected and sent off to be analzyed at some scientific laboratory.]

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Sunday, November 29, 2009

Tis the season in River City

"Yes Rusty, we should look at all city commissioners to see if there is a conflict of interest, just as we should do for any member on the city council or other publicly elected officers."

---"Black Riversider" in response to Councilman Rusty Bailey's latest foray into hyperbole during the Mayor's Nomination and Screening Committee meeting last week.

Testimony is scheduled to continue in the ongoing criminal trial involving former Riverside Police Department Officer Robert Forman. I've received some interesting responses to the coverage of the trial in this blog and the trial itself. Unfortunately, the Press Enterprise which used to cover keynote trial proceedings more vigorously hasn't been able to do so most likely due to its depleted staff, given how many of its most experienced staff reporters, editors and photographers have been given first buyouts and then pink slips in the past two years. Name a senior reporter you've grown familiar with reading and odds are, that person's gone. So the coverage of trials like everything else hasn't been quite what it used to be. But it's not entirely fair to blame a newspaper for failing to cover its beats adequately if that's clearly not the objective of those who make the operational and personnel decisions.

The Los Angeles Times has been cited by some as the newspaper of the Inland Empire. Oh really? The office space the newspaper used to house its former Inland Empire bureau is rented to a law firm at the moment and there's no longer even an Inland Empire section under the "local news" category on its Web site. Besides, the Press Enterprise never did quite go as far to marry editorial and news content with advertising like the Times did, even placing advertisements on its front page right on A-1.

Still, it's been interesting hearing comments about opinions about the testimony of various witnesses including officers and one comment from an individual who said that Forman was only the tip of the iceberg in the police department. Hmmm, that's not very good news if that's true, because an iceberg by nature is only 10% visible and the rest, not. There's certainly issues that have risen in this trial involving the police department that warrant further examination from supervisory accountability, to the integrity of the audio recording downloading process (to keep track on whether anything's actually being downloaded at all) and the Early Warning System. Not to mention behavior by some male police officers at crime scenes where they are present, certainly in the presence of women's clothing. Because when they are wearing that uniform and that badge, they represent over 300 police officers at varying ranks and assignments who weren't even there. After apologizing to the victim for what they've done with her clothes, they should apologize to those 300 + people they work alongside.

Someone I asked about the lingerie incident remarked that since it took place in the presence of a woman who lived in the apartment and at least one female officer, it could be an isolated event or cultural over spill from issues faced by the police department pertaining to gender. After all, if the male officers who participated in that unfortunate activity did so in the presence in the women, both officers and civilians, then what would that say about what's going on inside the agency? In a department where male officer attrition is at 29% and female officer, 44%, that's an interesting quandary.

Someone asked if Forman is going to testify and that question should probably be directed to his defense attorney, Mark Johnson but it's unusual for police officers on trial to testify in cases. They usually rely on the cross-examination of the prosecution's own witnesses and presentation of their own character witnesses in lieu of having the officer involved testify.

Riverside's in its winter season and soon to begin another holiday break but there will be several meetings that will be held this month including those involving the city council, which is set to meet on Tuesday, Dec. 1 at both 3 and 5:30 p.m. This agenda details what will be discussed as well as what won't.

Mayor elect Ron Loveridge will be receiving the oath of office for like, the trillionth time.

In closed session, among other thing the council and Loveridge will be briefed on a claim filed against it by Charter Communications. Here is the report but the laser fiche appears to be down or running very slowly so you might have to wait until Monday to read it. The city is working on fixing it if it hasn't completed that already.

Also there might be a city council member substitution while the Transportation Committee discusses a key issue in the fourth ward involving the Overlook road quagmire.

Fumbling the Ball:

CPRC and Ethics Complaints (round 2)

On the wake of the last ethics complaint involving Community Police Review Commission Chair Peter Hubbard, comes the second involving a CPRC commissioner, this time Chani Beeman. The complaint was filed against her by outgoing Chair Sheri Corral around the time she resigned. The allegations were that Beeman was rude during the meetings to other commissioners, which is kind of funny on a commission where that kind of behavior is all relative.

However, the city has once again violated this resolution when it comes to the processing of ethics complaints involving members of the city's boards and commissions. According to the language, complaints involving these individuals are supposed to be sent to the chairs of the boards and commissions for resolution at that level. If the board or commission can't resolve the complaint there, it is then forwarded to the city clerk's office which then forwards it to the Mayor's Nomination and Screening Committee for a hearing date. However, the city government has once again bypassed the process it's supposed to follow just as it did ethics complaints against city officials and has sent it straight to the committee.

Not only that, the subject of the complaint, Beeman apparently learned of the hearing date for that complaint through reading this article in the Press Enterprise, never having been notified directly by the city when the complaint against her would be heard. The city government needs to provide two explanations in a public venue as to why first, it's violating its own written resolution on handling ethics complaints involving board and commission members and two, why it's failing to provide proper notification in writing to individuals who are subjects of ethics complaints. You shouldn't have to read about when a complaint is going to be heard and ultimately decided upon that involves you through the Press Enterprise.

It's nothing new that city officials have been treating members of this particular beleaguered commission rather heavy handed ever since they voted last year essentially establishing policy and procedure for the commission's handling of investigations (which it no longer does) of officer-involved deaths. But then again, Beeman doesn't work for the city, either as an employee or an employee of an independent contractor so that's apparently adequate reason for her to be subjected to a different procedure than was American Medical Response director/management employee Peter Hubbard.

But then there are those who have faith in the creation and implementation of an ethics code and complaint process and there are those of us who don't, especially since it's being handed off to the city government to handle. So far, the city government's track record just isn't that great, given that only two complaints out of about six filed have even made it to the Mayor's Nomination and Screening Committee which puts on quite a good (and very entertaining) show especially when City Attorney Gregory Priamos throws out a good ad lib now and then but what's been put on display are good lessons on why Riverside will never have an effective process until the deciding body is an independent panel of city residents.

Jennifer Vaughn-Blakely and other members of the Group have offered up great recommendations of changes to this process which so far have been met with a mixed reception, particularly one that advocates giving the city residents the choice of having their complaints heard by a panel of retired judicial officers.

Watching the city council and mayor stumble so badly over the whole ethics issue particularly the ethics complaint process in the wake of the erupting scandal in San Jacinto is an interesting study, not so much in contrasts but some might say, before and after. The cities and counties that tend to be torn apart by similar scandals are those where the leaders have difficulty grasping let alone implementing truly meaningful ethics codes and complaint processes. But in the wake of the Bradley Estates debacle, the lawsuits filed by two Riverside Police Department lieutenants, questions about the city's economic health, relationships between key development donors and elected officials (including those no longer in office), it's not surprising to see a group of apparently intelligent well-versed elected officials completely mangle an ethics process. So much so, they completely disregard the written resolution which outlines the procedure in fairly specific language that it voted to pass not too long ago.

But fortunately the solution to this situation is very facile. Follow the written resolution and there should really be no further least with following the appropriate procedure. Then it will be like, woot!

Oh my goodness, here's an update. One city councilman on the Mayor's Nomination and Screening Committee has responded by agreeing that the appropriate process wasn't followed and that "changes" will be made to follow the "appropriate procedure". Hopefully that pertains to the above complaint which as stated above wasn't handled appropriately and in fact, the way it was handled was a violation of the written procedure for handling ethics complaints involving board and commission members.

Finance Committee Watch

A meeting has been scheduled for Monday, Dec. 14 at 2 p.m. but of course if you have been following this ongoing situation, you know that just because a meeting is scheduled to take place doesn't mean it will. Canceling scheduled meetings even tentatively scheduled ones, is just treated as the most normal thing and defended adamantly included by Finance Committee Chair Councilwoman Nancy Hart in a speech she made during the time set aside at city council meetings for comments by elected officials. At that same meeting, she defended the decisions made to cancel every meeting that had been scheduled before November this year.

The Finance Committee met last month for the first time since Dec. 8, 2008 and was attended by city residents and pretty much led by Asst. City Manager/Financial CEO/Treasurer Paul Sundeen. It is also tentatively scheduled to meet sometime in January 2010 to discuss the most recent audit done on the city's budget by an outside accounting firm. Will that meeting ever take place? Will it be canceled in the 11th hour? Will Sundeen chair it?

Stay tuned and find out!

Happy Birthday Temecula

One of Riverside County's cities hits a milestone birthday but what will happen next?


Ayres and the Man who Allegedly Owned Him

Why did one developer load the coffers of one of San Jacinto's now indicted councilmen? Actually the developer got indicted too and it appears that if the indicted councilman, Jim Ayres had won his election to serve in the hallowed walls of the State Assembly up north, he would have been in the developer's pocket.

The sad thing is that the Inland Empire is ripe for this form of old-fashioned mutual back-scratching corruption because of the heavy presence of development firms in this region, given the rapid growth of both commercial and residential development in what was once the fastest growing region of the United States. Look at the political campaign statements filed by many a candidate for a government position and you'll see in many, lists of contributors who are developers, usually from Orange County or other places outside the Inland Empire. After all, its the residents of cities like Riverside who are supposed to shop locally, not the politicians.

In other words, don't look under the surface of other spots in the region because it's likely that you won't like what you find.

A former Los Angeles Police Department officer was arrested for committing burglary at a church.

(excerpt, Los Angeles Times)

Charles Mottern, 45, of Irvine, was Tasered after he allegedly tried to flee from Orange County Sheriff's Department deputies, who were investigating reports of property stolen from the church, according to authorities quoted by the station.

Mottern had been working at the church since August 2008 as a security guard, sheriff's officials say. Church officials reportedly noticed that items began disappearing, including cameras, computers and radios after Mottern had been hired.

Last Thursday, security guards at the church interrupted a burglary in progress and saw a suspect flee in a black BMW.

In Maywood, California where the police department is being pressured by the State Attorney General's office to reform its practices, an elected official has resigned in protest of the indecision over renewing a police contract with neighboring Cudahy. The Maywood city government is known for its infinite wisdom, having appointed two interim police chiefs for the beleaguered police department, both of them having criminal records and/or having been fired from the department. Only after Deputy Attorney General Lou Verdugo (who had authored Riverside's very own consent decree in 2001) threatened to file a lawsuit against the city, did they kick the second one out and reappoint a new one, who actually didn't have a criminal record.

The Mission Inn: A look back

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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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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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Monday, November 23, 2009

Another Women Testifies to Sexual Assault by a Former RPD Offficer

"It's an insult really."

---Riverside City Attorney Gregory Priamos about being accidentally referred to as the city manager by a city resident during the Mayor's Nomination and Screening Committee's exercise on showing just why it shouldn't handle complaints.

"This is the very reason that we have consistently recommended to the City Council that an outside body be used to review complaints.Ethics is about perception and it's about behavior and how we conduct business."

--- Jennifer Vaughn-Blakely, chairwoman of the Group who probably wasn't surprised at the decision by the Mayor's Nomination and Screening Committee, which rejected its second straight ethics complaint filed.

Another day of testimony in the ongoing trial of former Riverside Police Department Officer Robert Forman who is being tried in connection with three felony charges stemming from allegations made by three different women that he sexually assaulted them while onduty. Internal Affairs Sgt. John Capen sat in the audience along with Sgt. Jaybee Brennan who serves as the adjutant to Chief Russ Leach while the testimony unfolded.

Det. Linda Byerly from the sexual assault and child abuse unit continued testifying, this time about surveillance video taken at the Robert Presley Detention Center when Forman and Officer William Zackowski arrive to book a female occupant of the apartment where the alleged victim lived that had been arrested. The video footage which began at about 6:49:12 in the morning shows them entering and interacting with corrections personnel and doing paperwork. After a few minutes they leave, with Forman looking at the female inmate one last time and Zackowski walking straight past her with his head forward as they exit the female inmate intake area of the jail on their way out of the building.

Next on the stand, was Jeffrey Chaney who said he bought a car from the victim and hung out with her some times. He had been convicted of auto theft twice and was dressed out in a bright orange county jail jumpsuit and had walked in with chains and with another deputy stationed behind him while he testified. Presiding Judge John Molloy explained to the jury what this all meant, in that it was a security based decision made by the Riverside County Sheriff's Department not the courts.

Cheney had two auto theft convictions and told the jury that he didn't want to testify because it "aint my problem". He was asked by prosecutor, Elan Zekster if he had said in an earlier interview that he was worried about retribution by the police.

In April 2008, he had visited the victim's apartment between 7-8 a.m. and found it "destroyed" as if it had been raided by police. She told them that it had been done by police and there were two other African-American gentlemen in the apartment with her at the time Chaney had arrived. While he was there, he heard a knock on the front door and heard someone say the words, "Riverside Police Department". He testified that the victim had been startled and didn't seem eager to answer the door. She told him to answer the door for her so he did. Standing there was a male police officer who he identified to the jury in court as Forman. Pointing at where he sat between two members of his defense team until the judge told him to articulate his response in words and so he did in a soft tone.

He said that the officer had asked him who he was and he gave his first name as Jeffrey because he didn't want to give his last name.

"I don't like cops," Jeffrey said in court.

When asked to leave by the officer, Jeffrey left as did the other two men after him and he got into his car and drove down several streets, coming around back to Mission where he parked with the apartment in his sights. He said that about 15-20 minutes after Forman had arrived, he left, holding onto his gun belt in a nonchalant manner. He then watched the officer get inside his squad car and drive away. He then went upstairs back to the apartment where the victim was and said she appeared disgusted with herself. The manager was up there yelling at her about something but she didn't seem to be paying attention to him, according to Chaney.

He asked her if she wanted to go with him and get donuts and coffee and she seemed anxious to get out of the apartment. He said she was crying and said to him, if I tell you something, you promise not to tell.

What is it, he said he asked.

"The cop just made me suck his dick," she said.

She asked them if that made her a whore, a slut or a bitch and he told her you are what you are. She told him her tongue felt swollen and she had the officer's semen in her teeth. He laughed at her at some point.

The actual act hadn't lasted long, he said she told him.

While being questioned by the different attorneys, he said he had been interviewed by detectives and the defense investigator although he had been confused about his identity of the latter individual. Defense attorney Mark Johnson asked him why since he had been on probation, he hadn't given the officer his full name and he said that he didn't like the police and worried about being arrested. He said that she had told him she was worried about the drug paraphernalia that had been found in the house, which had been about 40 hypodermic needles.

Johnson asked him why he had said when shown a six pack of photos which included Forman's last year, he had been less sure of which officer it had been.

"The picture doesn't look the same as he does now," Cheney said.

Sgt. Phil Neglia was on the stand next and Sgt. Julian Hutzler was designated the investigator on the case. While he had been a detective, he had worked on the case.

Neglia testified that he had spent 26 years in the police department and that on June 29, 2008 he had rolled out to a traffic stop for a suspected carjacking on University at about noon. He saw a woman sitting on the curb who was handcuffed and assumed she might be a suspect. Curious about why she was sitting separately, he went to talk to the onscene officers.

He talked with Officer Jeffrey Acosta who knew the woman and determined that the woman was not considered a suspect at that time. While talking with Neglia, the woman told him there was a "dirty cop" in the department. She told him that she had given an Officer Fillmore a blow job and he had given her $50 and some speed. Neglia questioned her for an overview to make sure she wasn't talking about UCR police officers or ones from RCCD who had similar colored uniforms but she was certain it was a Riverside Police Department officer.

Neglia gave her a six pack of names including Freeman, Fraiser, Jackson, Smith and Forman. She had answered no at first, then when he reached Forman, her response changed.

"That's him," she had said.

She also told Neglia she had pulled hair out of her head and put it in the officer's squad car. Neglia notified the watch commander on duty who sent out some detectives to talk to her.

She had given a physical description of a man with spiky hair, who was built similar to Neglia but taller and stockier. She had told Neglia she didn't want to get anyone in trouble. He didn't ask her any detailed questions because he felt that should be done by detectives in a controlled environment.

This woman, the second woman to be testifying about allegations made against Forman testified in court after the lunch recess period. She appeared dressed in a blue jumpsuit but had her chains removed upon order of the court after some debate on the issue between the legal parties. The woman testified that she thought Forman was "different" from other cops. She had crossed paths with him several times in the months before the alleged incident. In April 2008, she had parked in a truck with a friend near the Circle 1 store on University Avenue and had been getting high. Her friend had taken off walking even though she had told her it was okay. She stayed because she said she hadn't been worried about going to jail. Forman got out of the police car and asked her, what's up. He handed her a yellow clear baggie possibly out of his sock with crystal meth inside and she took it, putting it in her pocket. He didn't tell her it would be in exchange for sex.

She got into the rear of his squad car after he told her too, not thinking about it. Then she smoked the speed in the rear of the squad car while he drove for several minutes. She didn't pay any attention to anything but her drugs and he never said a word while driving. The car stopped and she looked around and saw trees, like a forest. They were at a park and she became nervous, even scared because she didn't know what was going on. Forman got out of the car and approached the side of the car where she was sitting, opening the door.

"How about some head," he said.

She was high, she said and didn't want to do it. She was nervous because she had no idea what was coming next.

"He's a cop," she said.

And what are you," said Zekster.

"I was a drug addict."

Forman stood on the side of the car door and she said he pulled out his penis. While his hands were resting on the top of the car roof, she performed oral sex. When asked how long it took, she said not long at all. Afterward, she said she felt like she was in shock.

"This is not happening. This is not happening," she said, "It didn't...It just seemed so unreal."

He didn't say anything afterward, she said, and she spit the semen out of the car. Forman got back in the car.

"He drove," she said, "He didn't say a word to me."

She was shocked and scared, she told jurors. She said she pulled out some hair, a few strands, from her head so that someone would know she had been inside the police car. When she saw lights and familiar sights, she started to feel less frightened. Forman stopped his car in an alley behind the Circle 1, she said and let her out. He told her not to say anything to anyone about it. She saw her friend and some other officers, including an Asian-American officer she knew named Henry Park. He knew her but she didn't tell him what had just happened. She just wanted to get high, she said.

About 20 minutes later, Forman gave her $50 and told her not to say anything then drove away. She said she brought up the incident in the park a couple of times with officers while getting arrested or drunk.

Under cross-examination, the woman admitted she had an extensive criminal record of stealing cars, theft and armed robbery. She said that Forman had never threatened her with arrest, detention or deportation during the incident. She said she had several encounters with him that day before the incident in the park and once after.

She said that Forman appeared to be high on that occasion but she wasn't sure and hadn't believed he was on prior encounters.

Johnson talked about a prostitution sting during one of his cross-examinations that she had gotten caught up in and seemed to ask what was the difference between that incident and the one with Forman and one with someone who paid her $40 for a blow job as a sex worker.

It's interesting that Johnson a retired police lieutenant doesn't know the difference between the two scenarios until you remember that Johnson is doing what defense attorneys do to protect their clients on trial which is to try the victim of the crime especially in sexual assault cases.

That's what defense attorneys do as part of their legal strategy just like misstating testimony (or changing the order of a sequence of events) back to witnesses to test their veracity on the stand and making comments, like did you enjoy getting high which somehow seem a bit extraneous to the line of questioning about the crimes in question. Just like prosecutors do in other circumstances, sometimes with the same individuals who become victims in crimes themselves including those committed by police officers. This is a case where the roles are switched, with the police officer on trial by the prosecutor and being represented by the defense attorney in a way that's not often seen because relatively few of the individuals prosecuted are law enforcement officers.

What's ironic is that the alleged victims and some of the witnesses in these cases have most likely been defendants in others and have relationships with police departments and prosecutory agencies including in Riverside that were more adversarial in those circumstances. Then they become involved in a situation where the roles have changed. This might be something to remember when people ask why individuals who are victims of these crimes take so long to tell the authorities if they do so at all. And whether or not they are able to trust the agencies that may have arrested them, investigated them and prosecuted them in the past or future with the handling of the crimes that they may have experienced. That's one reason why when police departments are investigating potentially rogue officers they might have difficulty with other victims of these officers coming forward.

Can Sex Workers Be Raped?

Johnson in his line of questioning appeared to bring up the issue of whether there's any difference between performing a sexual act for money or being coerced into performing a sexual act and then being given money a period of time later. He asked that of the second alleged victim to testify in the Forman trial while she was on the witness stand. It's not been established whether or not she was actually a sex worker though testimony indicated that might be the case and Johnson seemed to give her that label in his line of questioning towards the end of her time on the stand.

Whether or not the allegations by the victim occurred in relation to the relevant penal code is a decision that will be left to the jury, but it's the parallel itself raised by Johnson that seemed problematic but one that arises frequently in cases like this one. Whether or not she was a sex worker is an issue that the defense might be occupied with revealing to the jury to try and help its case, but there's a general issue involved with this line of questioning and supposition that feeds into an ancient and sexist stereotype about rape and women. Johnson seemed to be implying or even stating that only certain women can be sexually assaulted even under the color of authority or perhaps at all. He didn't exactly provide a list of women who can be raped as opposed to those who can't, but he appeared to put prostitutes or sex workers in the latter group. It's interesting to see a former law enforcement officer play that role given that they know the reality involving rape and sex workers or at least they should know.

He appeared to be using the myth that claims that prostitutes can't be raped by anyone including police officers through his line of questioning. Well, neither could wives by their husbands or anyone who wore skirts above the knee and "suggestive" clothing or women who had sex before marriage and so forth. until just recently in the history of the definition and prosecution of rape and other sexual assault offenses.

As the investigation and prosecution of rape and other sexual assault crimes has evolved, the labeling of victims as being real victims or not based on these characteristics appears to have lessened. Until you are looking at sexual assaults alleged to have been done by law enforcement officers when the handling of alleged victims seems to have gone retrograde and the old stereotypes that were thought to be at least weakened reemerge as if they hadn't left. But it's particularly ironic to see this in the case of sex workers who probably as an occupational group experience the highest incidence of rape including by law enforcement officers. Not to mention that the majority of sex workers were raped or molested by family members or other individuals before they became sex workers.

Some position papers written on the subject include the following.

Rape, Prostitution and Consent

Sex workers, Women and the Politics of Rape Law Reform

The reality is, that the vast majority of women who alleged that they have been sexually assaulted or forced to perform a sexual act by a law enforcement officer have criminal records most particularly involving drug use and/or prostitution. Most of the women that police officers cross paths with while on the job also have criminal records. There are cases where women don't have criminal records but get sexually assaulted through traffic stops, 911 calls for service or in one case in New York State are forced to strip and walk home (after DUI stops) while the officer drives behind them. And in Wallkill, New York, there was driving while female which led to only the second time a state attorney general's office had ever imposed a consent decree in a law enforcement agency which happened there in 2001, just several weeks after Riverside became the first.

Those police officers in Nassau and Suffolk Counties as well as Wallkill were written up as having particularly egregious forms of gender profiling within their ranks by media outlets. But in all three cases, most of the women who were targeted where White, middle class and quite a few without serious criminal records. In those cases, the officers involved were arrested and many were prosecuted. Some may have served time in prison for their offenses. Law enforcement officers who target these groups are often the ones who get arrested relatively quickly whereas it's much slower and a process that might stall for women who have less than stellar records.

Another case in Southern California involved a woman who called 911 and an officer responded who she alleged raped her in her house. She never reported it but one day received a phone call from a law enforcement agency doing a customer satisfaction survey. She reported the assault to that individual and that department upon investigating her allegation discovered the officer worked for a neighboring agency and forwarded the complaint. That officer was eventually arrested and prosecuted for rape. But this outcome is more typical in the relatively few cases where women don't have criminal records and/or are in a group with frequent contacts with police.

In Riverside around 1999, sex workers wanted to come to the meetings being held to address allegations of police misconduct but were leery of coming public with allegations of sexual misconduct or offenses involving Riverside Police Department officers. When Chief Russ Leach came in to the job, it was said that there would be a zero tolerance on that type of bad and potentially illegal behavior. How much it remained an issue after that and today, remains unanswered because so much of what police officers do and as importantly, the allegations and investigations involving them is shrouded in confidentiality. This is a question that through that design really can't be answered easily. And this trial of one former police officer may or may not provide a partial answer but it probably won't produce a definitive one.

But Johnson when interviewing the witness had asked her if there was any difference between performing a sexual act for money and receiving money after allegedly being coerced to perform that act.

At any rate, the woman seemed adamant that there clearly was a difference in her mind even if Johnson didn't see it or want the jury to know that it was there. She provided her answer.

"I didn't want any of that to take place," she said.

Did him being a police officer have anything to do with complying, Zekster asked her.

"Of course it did," she said.

One of the statements which punctuated her testimony, before she left the stand subject to recall for the remainder of a trial which is in its own way every bit as much of hers as Forman's.

Testimony is scheduled to continue onward this week before the Thanksgiving holiday break. I did receive some comments about the lingerie incident that preceded the alleged crime against the victim who testified last week. On whether or not that constituted a hostile environment for the victim who probably saw the officers playing with her lingerie as well as the female trainee who was present in what for her was a working environment.

Ethics in Wonderland

[City residents and Community Police Review Commission Manager Kevin Rogan sit in on the Mayor's Nomination and Screening Committee meeting.]

[The Mayor's Nomination and Screening Committee meeting sits and takes public comment in the hearing of the ethics complaint during its first handling of this process in over two years. Before that, Priamos (r) served as the arbiter of all the ethics complaints received involving elected officials.]

About 15 people attended the hearing that the Mayor's Nomination and Screening Committee held on the ethics complaint filed against Community Police Review Commissioner Peter Hubbard, even though all of its members receive campaign contributions from the business he works for. Several people including myself spoke and were then questioned by council members which was kind of fun. Especially by Councilman Steve Adams, who had already made up his mind on the complaint before the meeting and expressed it to the Press Enterprise.

Favorite moments:

1) City Attorney Gregory Priamos' comments after one city resident mislabeled him as the city manager. Someone said something about that might mean he gets a pay raise. He simply said he considered it an insult. Not surprising considering if it's indeed true that Priamos wasn't the first choice for the City Manager Brad Hudson that is when he first arrived. Every once in a while, Priamos throws out an enigmatic comment or two of pithy pathos that has to do with Hudson or his office, which often leaves witnesses scratching their heads to make sense of it all but by then the meeting's usually moved on leaving that moment of ethereal confusion like a trail of dust. Why be insulted by what was an honest mistake of misidentification of his job label?

But Priamos definitely gets a gold star for figuring out that the Mayor's Nomination and Screening Committee is a venue for processing ethics complaints rather than himself.

2) Adams' defense of his comments in the PE by stating he merely provided "facts". This quote taken by him included in the article is a pretty good example.

(excerpt, Press Enterprise)

"This is a political issue they're raising" rather than an ethics problem, he said.

That's actually an opinion that he's entitled to, not a fact and it's a judgment on a complaint before the deliberation and fact finding process have even been completed. What Adams is doing is performing an important public service and that's showing that the Mayor's Nomination and Screening Committee is ill prepared and simply unable to without bias (including waiting until the committee deliberation process to give an opinion) to handle complaints where it is experiencing a conflict of interest. And just as importantly, the perception of a conflict of interest. But that's something that the committee members had a lot of trouble grasping. Which isn't surprising considering that Priamos had and they don't seem to know how to do anything without having him tell them what to do, so that difficulty in cognitive dissonance permeated the meeting like a thick cloud as it often does when the city attorney's pretty much in charge of legislative tasks not legal ones.

But Adams' is really an interesting city official who's probably the most interesting to quote and to analyze what he's said or in one case, co-written in an op-ed piece in the daily newspaper on what else? The CPRC. It's not surprising he's decided to deny that City Hall has politicized the commission given that the one elected official who did so openly is no longer serving in his elected position as councilman. Just like he had to pull out that argument about how holding a public official accountable for their behavior is tantamount to persecuting them for going to a baseball game. Makes you hope those rumors that he's planning another run for state assembly aren't true. City Council is minor league, but in the state arena, it's all hardball. But Adams bristled at the idea that he would be involved in the micromanagement of an entity like the CPRC. However, those allegations aren't without precedent at least as far as his actions as an elected official are concerned.

And by the way, Adams is currently the focus of a lawsuit filed by two police lieutenants alleging he tried to influence or make it appear he was influence the promotional process of the police department. Meaning that he is alleged to have made statements to police officers that if they didn't support him or because they didn't, they wouldn't get promoted. I guess if that's true, that makes him Police Chief Adams, who actually was a police officer about a decade ago before taking a medical retirement over an alleged on the job injury.

3) The incredible restraint shown by the committee of not taking a vote before receiving public comment unlike actions taken by the entire city council as a body when they were undergoing the interview and selection process for the latest CPRC commissioner. A practice which was actually in violation of their own policies and procedures for meeting decorum. But when an elected body has already manhandled the city charter to micromanage the civilian oversight mechanism like the CPRC, not abiding by set meeting protocol is not a surprising development. But although I left early, it appears that the committee members didn't vote and then take public comment like the city council did last week. Not one council member spoke up at that meeting last week in defense of their own established policies and procedures for conducting public meetings and that's a shame.

4) That there's still anyone who doesn't realize that the emperor is completely buck naked when it comes to an ethics code in this city. The ethics code and complaint system simply is nothing if not like that beloved Hans Christian Anderson tale. Most of the city residents who follow the sad sojourn of this attempted introduction and enforcement of municipal ethics on Riverside's governmental body realize this as do many people at City Hall. The elected officials? Bah, give them an election cycle or two and they'll figure it out. Because even while City Hall twiddles with the charter mandated ethics code and complaint system (much as it does with the charter mandated CPRC), the true ethics determining body has successfully voted out three sitting council members and fell a scant dozen votes short of evicting another.

5) The CPRC has become the embarrassment of the NACOLE organization which umbrellas civilian oversight in this country. Since that's happened, what would really serve the city is to reinvent a slogan or design a logo highlighting this accomplishment because it only took Riverside four years to accomplish this feat. If they stack half the commission with law enforcement officers and the other half with de facto city employees, it won't push it further into that category of distinction that much quicker.

Alas, I had to leave to sit in on the Forman trial and to no one's surprise, the Committee voted to reject the conflict of interest case involving Hubbard. Next month, they will be hearing a complaint filed against CPRC Commissioner Chani Beeman by former chair, Sheri Corral for discourteous comments made by Beeman. Judging by some of the attempts by committee members to bring Beeman into the complaint against Hubbard, we'll have to wait several weeks to see the very different response that this complaint will get by the Committee. Will the committee listen to the hours of audio tape that shows that Beeman actually wasn't making rude comments?

That doesn't seem likely. After the complaint is heard against Beeman, there's apparently another complaint against yet another CPRC commissioner coming from some venue.

But in this case, the committee had no choice to void the conflict of interest situation involving Hubbard because it's own conflict of interest situation is so closely tied in with Hubbard and American Medical Response. If it addressed the situation it created when it appointed Hubbard, it would have to address its own unsuitability to hear the complaint of an employee of a company who pays money into their election campaigns.

What's truly disturbing about the committee's utter disregard of the perception of conflict of interest which is written into the code is that it's not difficult to guess that perhaps members of another nearby city government exercised the same disregard before they made that irrevocable decision to engage in actual conflict of interest at the expense of all their city's residents.

Stay tuned because this most likely is another ongoing saga in municipal history and politics in River City.

Riverside City Hall insists that the Renaissance won't be hampered by the recession (well, except for the downtown library, the museum...) but who will pay for those cashed out bonds? And what will happen, as one reader said, to the house that the city has carefully constructed out of cards?

How will Riverside County save money in its operational budget?

Jacinto-Gate Continues to Unfold

There is actually one member of the San Jacinto city government who didn't get indicted in the recent scandal. What he is doing now.

Meanwhile, the indicted mayor plans to keep working and fighting the corruption charges while the vice-mayor has been praised by city residents.

And court transcripts involving the people indicted in that scandal?

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