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

Saturday, January 30, 2010

A Riverside Councilman Takes a Stand on the CPRC and Forman Fallout Hits the RPD

UPDATE: Inglewood's police department is told by United States Department of Justice that it must reform....

Former RPD Officer Robert Forman Sentencing Postponed...Again

Judge Molloy: Several officers testified in ways "detrimental to their careers."

A packed courtroom of prosecutors, Internal Affairs Division sergeants and family members of the defendant listened as Riverside County Superior Court presiding judge, John Molloy listened to both parties involved in the case of former Riverside Police Department Officer Robert Forman who was convicted of last month of one count of felony oral copulation under the color of authority and misdemeanor petty theft. Forman was acquitted of a second charge of oral copulation under the color of authority and received a deadlocked verdict on a felony sexual battery charge.

After the trial, Forman's attorney Mark Johnson filed a motion for a new trial contesting the convictions and raising allegations of prosecutory misconduct and witness tampering involving the ex-boyfriend of the victim Forman was convicted of assaulting. The Riverside County District Attorney's office responded and filed its countermotion which Johnson then responded to in writing.

Molloy said that the purpose of the motion for new trial wasn't to punish either party in the case but was to guarantee that Forman's right to a fair trial on his criminal charges was exercised. He did say that he couldn't find anywhere in the defense's motion that any specific information was provided about what evidence was withheld from the jury. Johnson said that the ex-boyfriend had been willing to testify for the defense challenging his ex-girlfriend's credibility and had told defense investigator Robert Tufano that, but that when he came to court, he seemed less than willing. The boyfriend in a hearing ultimately invoked his Fifth Amendment right to avoid self-incrimination and didn't testify. He was led away from the courtroom by deputies not long after who took him back to jail.

Molloy said in court that Johnson had chosen not to put the witness on the stand. Johnson said that after being prohibited by talking about what happened on April 18, 2008 (the day of the sexual assault) that there wasn't much left for the witness to talk about. When asked for the evidence that was not revealed to the jury, Johnson said that the witness would have testified that he had seen the victim put on makeup and get dressed before telling him to leave which indicated to him that she was waiting for a gentleman caller and that this was Forman. This led the boyfriend to believe the sexual act to be consensual.

"This is absolutely material to the case," Johnson said.

Molloy said that the case did turn on whether the sexual act involved was consensual. The jury heard different versions and accepted one while rejecting the other. The judge said that the withheld evidence had to be material to the case before he could move on towards addressing the raised allegations of prosecutory misconduct.

Prosecutor Elaina Bentley who works in the office's appellate division argued against the motion for new trial filed by Johnson. She said that the victim had already been impeached by previous felony convictions as well as misdemeanor convictions of moral turpitude and that the witness was a spurned lover facing deportation for crimes. The testimony that he would have provided would have been unfavorable to the defense because his version of events which detailed that the victim had known that Forman was coming contradicted Forman's account which said that his decision to return to the woman's apartment was a "spur of the moment" decision made while he was getting food at a nearby drive thru restaurant. She added that this latest account by the witness conflicted with statements that he had made in earlier interrogations that he had not even been at the victim's apartment that morning, that he had been at his mother's house and in fact had said earlier that he had not seen her again until three days later.

"The first time you heard this story was at the 11th hour before lunch," Bentley said.

Molloy reiterated his earlier point that information that was withheld from jurors had to be material and asked for more examples from Johnson. All he had heard was comments that the victim was putting on makeup and clothes.

"The court cannot say this is material," Molloy said.

Molloy issued his tentative ruling which was to deny the motion for new trial and said that both sides had to ask for a hearing before he could address the allegations of prosecutory misconduct. But the prosecutors didn't ask for that hearing.

Johnson said that the prosecutors had wanted transparency in the process and that so many things in the trial had been nefarious in their totality and that the police department had been involved in trying to get Robert Forman. He said that if he had tried to tamper with a witness, he would have been held up on State Bar charges but the prosecutors could say no harm, no foul.

Several Officers Testified in Ways "detrimental to their careers"

Molloy countered the allegation of the department's involvement in going after Forman. He said that three to four officers had testified with information that was detrimental to their careers in front of Internal Affairs Division sergeants who had been sitting in during the trial and at subsequent hearings after the jury had reached its verdict.

"A few careers might have self-destructed at least partially while on the stand," Molloy said.

Meaning most likely the several officers who had testified to engaging in misconduct including their involvement in the lingerie incident where a group of male officers played and joked with the victim's underwear right in front of her before it wound up on the dart board. And in relation to this and other testimony, issues arose on the witness stand and were raised by attorneys for both sides regarding the veracity of several witnesses. Both involving civilian who testified and as it turns out police officers as well.

The reasons why the Internal Affairs Division sergeants began appearing in court starting with the morning that Officer William Zackowski testified have varied. Those given have included the need to build enough of an administrative case against Forman in case he tried to appeal his firing through arbitration after an acquittal. But another reason presented was that the sergeants were dispatched down to the courthouse to sit in on the officers' testimony upon an order issued from higher up in the department due to concern related back to the department that some of the officers might be testifying to accounts different than those provided to the case investigators earlier.

Testimony did emerge during cross-examination of Zackowski that the department's investigators had not believed that his version of the events preceding Forman's assault of one victim had been true and that he was sent back for an additional interview by a sergeant who told him after his initial interview that the department's not amused with him. Then the defense investigator had allegedly called him up and told him to help the defense in case they have to work with him in the future, a comment he took as a threat according to his testimony on the stand. A tactic that's certainly questionable at any rate.

Officer Anthony Watkins, who lateraled from the CHP in late 2005, also testified to a version of an encounter with one alleged victim of Forman in the autumn of 2008 that was apparently much different than that he provided to the defense's own investigator months before the trial. Prosecutor Elan Zektser impeached Watkins with the defense investigator's summary of his interview while Watkins was on the witness stand. By the end of his testimony, there wasn't much left of what he said that hadn't been thoroughly impeached by the prosecution and even by the defense. Watching him testify was very worrisome, and it made you wonder if this kind of testimony he provided was an isolated occurrence or part of a larger pattern.

Issues apparently arose with the testimony of at least another officer who testified with the defense as well though for the most part, the testimony of the majority of the officers who testified wasn't exactly the kind that would raise eyebrows and seemed straight forward. That just provided a bigger contrast to the testimony by several of the witnesses that did. There were moments of the trial which certainly weren't the RPD's finest hours and many issues came to light both in terms of what witnesses testified to as well as what they didn't. No doubt, the department's not going to be pleased at Molloy's words and no doubt, the department is checking and double checking the public record in terms of what each officer testified to while on the stand and how that stacks up with accounts they gave to investigators on the Forman case earlier.

The officers who testified in relation to the lingerie incident contradicted each other as well as the victim and former probational police officer, Megan Edwards Meyers. None of them mentioned much in their testimony about where Forman was or what he was doing while he was supervising the police activity in the apartment of one victim during a home invasion call in April 2008. The victim had asserted that Forman had placed the lingerie on the dartboard and joked with other male officers about it. Meyers and a couple of others testified to seeing it on the dartboard and Meyers testified that unspecified comments were made by the male officers about it. However, some officers said that they didn't even notice a dartboard in the apartment let alone see any underwear on it. None of those testified that they saw Forman near the dartboard but then there was scant testimony by any of them about what Forman had been doing and where he had been while he spent time inside the woman's apartment, enough to turn him into the "invisible" man.

The other area of contradictory testimony involved whether the evidence of syringes and methamphetamine baggies in the apartment of the woman who was on felony probation at the time warranted an arrest or whether the woman was informed she was arrested or could be arrested by officers. One officer, Zackowski, had warned her at some point in the bathroom that if he found more syringes on the search than the one that he had already found that she would be arrested. Later, the search produced a bag of 20-30 of them in her bedroom closet, a bag of drug paraphernalia that was never taken into evidence.

Several other officers who testified hurt Forman with their testimony including his former trainee, Michael Bucy who said that Forman had been a very meticulous, strict and thorough field training officer which contradicted Forman's own testimony later on that he was "lazy" and "complacent" and violating many departmental policies including those prohibiting the destruction of the digital audio recordings, those involving the use of police informants and those involving radioing in when going to a person's residence (which is also important for safety reasons).

The officers behaved professionally in their demeanor on the stand although some simply were more believable than others, actually most of them were believable over a few. Even some of those who were friendly with Forman didn't seem intent on angling their testimony towards helping him. The sergeant, Paul De Jong who was one of three sergeants assigned to the home invasion call appeared at court several times to speak with officers who were testifying as to the incident while they waited to be called to the stand and later was called to testify for the defense. Allegations also arose anonymously on the Press Enterprise Web site that the department was disciplining officers who had testified for Forman's defense because of what they said on the witness stand including the "SWAT officer" who's likely Zackowski. Essentially being punished for admitting to policy violations, according to the commenter on the site.

So a bit of controversy is brewing on this case which also saw a brief but emotionally charged verbal exchange between two officers on opposite sides of the issues (because after all, they're not all monolithic about everything), one through what he advocates, one through what he was encharged to do as a police officer, which was a very difficult task. But whatever these officers testified to on the stand, right or wrong, was their choice. What they told investigators, right or wrong, was also their choice. And what Forman said on the stand was his choice. No one put words inside their mouths as one person said. Police officers, after all, are in a sense witnesses by profession. As for the investigators assigned to Forman's criminal case, they had no choice in their assignment and hopefully they're not paying for something that's part of doing their jobs, as police officers which means doing things that are unpleasant. They were doing what every police officer is encharged to do which is investigate a crime and that should be respected. This time, it involved one of their own. Hopefully that will be a rare thing for the right reasons.

Molloy was somewhat somber when he made that very rare statement about the officers he felt had done damage to their careers when they took the stand. Whether he believed they were honest by testifying to admitted misconduct including the lingerie incident in the woman's apartment or whether they were speaking the truth after giving conflicting information to investigators, wasn't clear. But it's clear that the fallout from the Forman case on the police department isn't finished. Not nearly.

Sentencing Postponed

Molloy postponed the sentencing in the Forman case as the court is still awaiting the recommendation report by psychologist Dr. Rath who as of this date had still not interviewed Forman because on one occasionally, he accidentally went out to the wrong jail facility. He told the court he plans to interview Forman in the next two weeks and will submit the letter after that.

A tentative sentencing date has been set for Feb. 11, at 1:30 p.m. And if the doctor's report isn't completed and sent to the court by then, it might be postponed for another week. The probational report for Forman was "very favorable" and it's more likely than not, that Forman's sentence for forcibly orally copulating a woman and committing petty theft will be between 120-150 days in county jail. One comment you won't be hearing from Johnson is what kind of sentence he or anyone else would be getting if they had forced a woman into oral sex.

Molloy's the one who will ultimately decide whether it's probation, jail or state prison for the former Riverside Police Department officer.

Is the City Council Thawing on the CPRC?

One city council member in Riverside has said that it's time to restore the investigative powers of the Community Police Review Commission involving its charter mandated power to investigate and review officer-involved deaths. Currently, there are two other city council members who agree with Gardner's assessment but that's not enough to reverse the 5-2 vote that took place in early 2009 by the city council to essentially suspend the commission's charter power and reaffirm the ban placed on the commission by City Manager Brad Hudson (who's believed to have been directed by a current and/or former councilman or two). Apparently, the commission remembered why it existed or a voting majority of it did and voted to initiate an investigation into the Sept. 1, 2008 fatal shooting of Carlos Quinonez Sr. and apparently the city has given its permission to conduct this investigation nearly 18 months after this incident. In opposition to the motion were Chair Peter Hubbard (who clearly knows what side of the bread his is buttered on), Art Santore and Ken Rotker, along with Rogalio Morales (who's an inspiring future employee of the Riverside County District Attorney's office) whose view seemed to fluctuate a bit.

Of course, at this point, even the city (and especially the city) knows that conducting any investigation at this point is useless which was precisely the point behind the action taken which was to knock out the power of investigating and reviewing officer-involved deaths without undergoing the arduous and probably unsuccessful process of creating a charter initiative to amend the charter's language in its favor. Subverting that process without allowing for the public vote actually required to amend the charter vote was the tactic chosen by the city manager's office, the city attorney's office and likely involving a current or former elected official or two. It's believed that Councilman Frank Schiavone spearheaded this process and when it became clear to many Ward Four voters that this was the case during his 2009 reelection bid, he lost the support of several critical neighborhoods including Casa Blanca and this in part, caused him to be given a pink slip by the ward's voters instead of another term on the dais.

Adios Schiavone. At least until he reemerges most likely to run again for county supervisor in several years.

But at least Gardner's taking this stance and hopefully he's not alone on the dais. Only time will tell how other elected officials respond to his call for action. Two other council members have said that they support this action as well, but it appears that the other four are still fairly adamant in their positions even as they're not exactly sure what they are (particularly the case with Councilwoman Nancy Hart), though apparently Mayor Ron Loveridge might have softened on the issue as well.

Councilman Steve Adams continues to show that he should follow his own advice about not speaking on issues in which he either knows nothing or is not an authority, meaning the city's charter (which it doesn't seem like he's read) because his statement here:

(excerpt, Press Enterprise)

"They're there to review and advise, not investigate," said Adams, who is a former Riverside police officer. "If it takes a year, it takes a year."

is in violation of this charter amendment. For most people, carrying out a charter violation would as City Attorney Gregory Priamos helpfully pointed out to commissioners in autumn 2008 would result in a $1,000 fine and six months to a year in county jail. That's for most people, remember. There are of course exceptions. But given that Adams is the last remnant of both the GASS and BASS quartets, it's not surprising that he's been making some noise. He's running again in 2011 and it seems that currently some of his opposition is still undecided about whether or not they will face against him.

Traditionally, the police unions in the department have supported Adams and in fact, were instrumental in getting him elected after he moved to Ward Seven after his initial attempt to gather signatures in another odd-numbered weren't very successful. But last time out, Adams and both the Riverside Police Officers' Association and the Riverside Police Administrators' Association parted ways. The two unions instead endorsed another candidate, who was eliminated in the first mail in ballot round. Members of the RPOA PAC were upset about a letter that Adams circulated to voters criticizing them and both Lt. Darryl Hurt, who was president of the RPAA and Lt. Tim Bacon later sued the city including Adams for allegations including retaliation against those officers who didn't endorse him by saying if they didn't support him or worked for his opposition that they would "never fuckin get promoted".

Even two years later, the RPOA's leadership remained divided in its support of Adams and the new RPAA president, Lt. Bob Williams initially said that the RPAA wouldn't be backing city council candidates in the 2009 election because they didn't want to be perceived as playing favorites due to their roles as police officers and that they would have to work with whoever got elected. However, not long after that, the RPAA announced that it was endorsing Schiavone for reelection even though Schiavone was also being sued by two of its members for retaliation against them.

What was behind the 180 degree turn on the RPAA's stance on city council election endorsements was a mystery to most but no doubt, the change of heart must have been part of an interesting storyline that took place in the 2009 city council elections. The department at the time was experiencing more staffing shortages as sergeants, lieutenants and one captain, Mark Boyer, retired during the time period of the council elections. Boyer's retirement came as a surprise to most people, including myself who had a conversation with him several months before whereas he and a lieutenant (now also retired) both joked about going after retired Commander Richard Dana's longetivity record. Within six months, both were gone.

And the Ward Four contest was turning into a real horse race between Schiavone and challenger Paul Davis, who was engaging in heavy canvassing of the ward to meet prospective voters and many ward constituents while Schiavone pretty much avoided all of that, a decision which among others he had made while in office would prove to be costly. The decision to endorse Schiavone over Davis allegedly split the decision makers of the RPOA, and not long after that at least one long-term board member resigned. And neither endorsement nor did that of most of his dais mates did Schiavone any good. The residents of Ward Four upset over the DHL-Gate situation, the dilution of the CPRC's powers and the Bradley Estates scandal were more than ready enough for a change in representation on the city council.

Adams himself got a whiff of that discontent when he barely managed to get reelected to office over former councilwoman and mayor, Terry Frizzel who he outspent nearly 20 to 1. Only a scant 13 votes separated the two of them by election end and yet Adams seemed to act as if he had won by a landslide. Several candidates are thinking about running but no one's committed because the city is still in that time period when any prospective candidate is weighing the pros and cons of tossing their hat in the ring to run for a city council position.

But until the 2011 election begins, Adams still has plenty of time to muse on the issues and his take on them and if he doesn't exactly make the correct reference to the charter, well then it's not like there's anyone from the halls of power that will correct him.

But here's the charter language below pertaining to the CPRC and its power assigned to it pertaining to officer-involved deaths. The original municipal code was the powers given to it by the city council in 2000. The charter includes the powers given to it by the majority vote of the residents of Riverside. These powers were placed in the city charter to prevent just what happened, politicking by the city council.

(excerpt, City Charter Section 810, color coded for Adams' benefit)

"Review and investigate the death of any individual arising out of or in connection with actions of a police officer, regardless of whether a complaint regarding such death has been filed."

Not that it will do Adams much good to point this out. The four commissioners who voted against the motion to initiate the investigation need a refresher course on the charter language as well, not that it will sink in the mind of the chair of the commissioner, Hubbard, who's working with the company, American Medical Response, that has a public safety contract through Hudson's office.

But then if I were a city councilman who's among other things being sued for allegedly threatening Riverside Police Department officers with not being promoted unless they back his reelection bid, I wouldn't want the commission to be looking too hard at the police department either because what if they discovered my fingerprints in places they didn't belong? And if the allegations in the lawsuit filed against the city including Adams are true, then that's the case and then questions have to be asked as to how and why that was allowed to take place. How is it that a councilman thought that he could go around telling officers that if they didn't back his campaign, they couldn't be promoted.

And if that's the case too, then any attempt to uncover said fingerprints isn't going to be particularly welcomed by someone who's being sued for having them in the big pot inside the Riverside Police Department. It would be very distressing indeed to learn that city officials were involving themselves in the police department in ways they shouldn't. Including decisions made regarding promotions and the hiring of employees. The council's role in firings is limited to making decisions about whether to accept decisions made by arbitrators in cases of fired employees or to appeal them in Riverside County Superior Court.

It's interesting how those city councilmen who don't oppose it are not being sued for interfering in connection with any such alleged behavior but some of those who do or have in the past (i.e. former Councilman Frank Schiavone) are being sued. If these individuals are engaging in such inappropriate behavior (and other related misdeeds) then yes, they are going to be stomping around upset about civilian oversight, even though the CPRC really doesn't have purview over some of the areas of the police department that need much closer scrutiny. But then it's interesting that some city officials still feel intimidated by the commission as weak as it has become.

Still, it's a bit amusing to see Adams rant and throw strawmen about how investigators trample crime scenes when they've never been to one but Adams risked putting the city at huge financial liability when at one city council meeting, he slandered the CPRC's investigative firm by saying that it fabricated evidence in one officer-involved death investigation without elaborating on the basis of his allegations. So you have an elected official who essentially accuses without any presented factual basis an investigative firm of engaging in behavior that is both highly unethical and also criminal in nature. Suffice it to say that the folks at this investigative firm weren't at all amused and it was left to CPRC Manager Kevin Rogan to clean up after Adams' missteps. Unfortunately, no one on the dais corrected Adams' false statements about the investigative firm and no one took sanctions against his statements or asked him to provide a factual basis for them.

But with Adams, you just never know what he'll do or say next and this latest comments involving the CPRC are just another chapter in the fascinating book of Adams.

So what's next for the CPRC in the wake of Gardner's statements to the Press Enterprise? Unless people who share the dais with him start speaking out too, probably not very much. It takes four votes to undo the city council's prior vote to amend the city charter (without taking it to a popular vote) and so far, at least publicly, the rest of the dais is pretty silent.

Update on Eastside Raids

A community meeting to discuss the raids on Wednesday, Jan. 27 will be held possibly in the upcoming week involving Councilman Andrew Melendrez who said he was barraged with phone calls that day and the Eastside Think Tank.

The Riverside County District Attorney's office gave a press conference with the heads of the Riverside Police Department and the United States Attorney's office and provided statistics for the membership and arrests and home searches of those subjected to warrants in connection with association or membership in the East Side Riva gang. However, none of these entities made references to any law enforcement activities involving the 1200 Bloc Crip gang which also has a foothold in the Eastside and has committed shootings including a double homicide in December 2008 which remains officially unsolved. This one-sided portrayal of gang enforcement in the Eastside has long led to complaints by the neighborhood's Latino residents that they are being subjected to enforcement while the victims of crimes committed against them by the 1200 Bloc and Georgia Street Mafia gangs go ignored.

Someone in the department did challenge the content of the arrests in the D.A.'s press conference and said that about 45 arrests and searches were conducted that day against 1200 Bloc members but that because there's no injunction in place against 1200 Bloc by the District Attorney's office that it makes for better press for that office to focus on ESR enforcement and arrest statistics than for the other gangs.

If this is the case, then the District Attorney's office including its head, Rod Pacheco needs to explain why they view the crimes including murders committed by one gang as being more important and the management of the police department needs to explain why it said for years including not too long ago that the 1200 Bloc gang didn't even exist, that killings and shootings including Black on Latino were committed by gangs just "passing through". The D.A.'s office needs to explain if this is the case, why it's using the name of one Eastside gang and the enforcement actions taken against it to promote itself. Because what was spoken certainly isn't the truth and it's little consolation to the relatives of victims killed by the 1200 Bloc Crips in the past several years, including during the time they purportedly didn't exist. If the police department's units are using enforcement tools on both gangs, then the D.A.'s office needs to recognize this in his speechs rather than present a rather skewed picture of gang enforcement measures taken in the Eastside.

At this upcoming community meeting, representatives from the District Attorney's office and police department need to provide accurate and up to date statistical information on the numbers of gang members in both ESR and 1200 Bloc and the comparative arrest and house searches conducted for each gang. The numbers for each will provide a more accurate picture of which gang received which levels of enforcement for those who are in attendance at the meetings. The stats are available, it's just the issue of whether as one person said, the area commander has the guts to present them at said meeting.

Let's hope that this is the case in terms of addressing this ongoing issue of whether there's unequal enforcement regarding different gangs in the Eastside and that this is made clear to the public that while the District Attorney may be favoring one gang over the other in his press appearances, that this isn't the case with the department.

Public Meetings

Tuesday, Feb. 2 at 3 p.m. and 6:30 p.m. Riverside City Council will meet and discuss and vote on this very abbreviated agenda. And as an additional bonus to the entertainment, our very own red cheeked Councilman and Mayor Pro Tem Steve Adams will be presiding over the council meeting. Friendly wagers will be accepted on whether or not he rants from the dais or even pushes for the ejection of someone from the chambers, which he did on one meeting during the short period of time he chaired an afternoon session of a recent city council meeting while Mayor Ron Loveridge left the dais. Apparently, he grew all red faced and began shouting before police officers in the back of the room were ordered to eject a speaker. It took him but a minute or two to get to that point and he seriously wants to run for election again in 2011? He's verbally assaulted people at meetings and he's being sued for threatening city employees who don't either endorse him or they endorse or work on his opponent's campaigns. They should really charge admission to see his act but they're going to let people view it for free!

Hopefully, he can make it through this much abbreviated agenda without a meltdown.

Finance Committee Watch

After holding three consecutive meetings, which must be a record at least in recent times for this previously barely there committee, it has been scheduled to meet again on Feb. 8 at 2:30 p.m. although there's been rumors that meeting might be canceled. We'll have to wait and see.

Save Our Chinatown Committee's fundraising Chinese New Year Banquet on Saturday, Feb. 13 at 5:30 p.m. at Lotus Garden Restaurant in San Bernardino.

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