Another RPD Lawsuit heads to Jury Trial

UPDATE:

 

 

Judge Ronald Taylor Tosses out Nakamura Lawsuit 

 

In the afternoon session, the city's attorneys presented a motion to toss the lawsuit out to Taylor claiming that the Prima Facie hadn't been met. There was a lot of legalese tossed around but basically there were two main points of Taylor's ruling

 

 

1) If you commit a violation you put yourself at risk of being investigated and if there's problematic practices involved in that investigation it's your fault. Something along the lines that you can only be raped if you wear conservative clothing and are a nun.

 

 

2) If the RPD experiences atypical periods of chaos in its history, it's perfectly acceptable if it either doesn't follow written policy or has written policies in place.

 

 

By the way, the jury appeared split right down the middle and split verdicts were highly possible. But why take your chance with a jury when it's easier to convince one judge? Why have jury trials anyway? The city had fought so hard to avoid having a jury hear it, now they fought to prevent a jury from deciding it.  Some jurors appeared to sense from the testimony that not all was right in River City.

 

 

As a decade long watchdog of the Riverside Police Department, this ruling greatly troubled me particularly the argument that if you're in chaos, you don't have to have written rules or follow them. Unfortunately, that's been  longtime pattern and practice of the RPD as historians know and with a Superior Court judge putting his stamp of approval on that, we're all waiting for the next crisis and its aftermath.


The following CPRA request seeking policy and procedure information was sent to the RPD including its Training Division. Upon further review, a separate CPRA request will be sent regarding similar information on "detention" procedures for departmental employees including alleged or suspected victims of sexual harassment or a hostile work environment.


Forwarded Message -----
From: mary shelton <chicalocaside@yahoo.com>
To: "sdiaz@riversideca.gov"
Cc: "cvicino@riversideca.gov" ; "jgreer@riversideca.gov" ; "mblakely@riversideca.gov" ; "JBrennan@riversideca.gov"
Sent: Wednesday, April 10, 2013 9:07 PM
Subject: CPRA Request


April 11, 2013

Riverside Police Department
4102 Orange St.

Riverside CA 92501

RE: Public Records Act Request

Dear Chief Sergio Diaz:

Pursuant to my rights under the California Public Records Act (Government Code Section 6250 et seq.), I ask to (inspect/obtain a copy of) the following, which I understand to be held by your agency:

Copies of any and all relevant polices, procedures, training (including AB 1825 training) and investigate/interrogative practices involving addressing Sexual Harassment and a hostile workplace environment for both civilian and sworn employees

Background: During recent litigation, it's come to my attention that several, perhaps well intended practices involving the investigation/interrogation of potential sexual harassment victims might cause undue trauma, and a chilling effect on the reporting of sexual harassment/hostile work environment if these practices are still in place. One of them being the means of approaching the victim or any witnesses to set up the necessary interview of him or her to obtain the account of any alleged harassment or policy violations to that effect. For example, showing up unannounced in a parking lot of a city owned facility to escort or transport them for an interview.

Deputy Chief Mike Blakely very helpfully testified in a court proceeding of how the department's management holds that these practices help facilitate the investigation of suspected sexual harassment/hostile work environment and prevent a "chilling effect" against any reports of such policy violations but in known practice it seemed to have the opposite effect. The information requested would greatly help to see what current practices and procedures are and how they stack up with "best practices".

Also I learned in the court proceeding through sworn testimony that the RPD currently has no policies and procedures in writing or otherwise addressing sexual harassment/hostile work environment within the agency itself apart from the city at large. There's been testimony and legal argument presented that the department is a "paramilitary organization" and thus has unique needs and realities separating it from the city. It seems to me if that's the case it should be adopting and using its policies and procedures to address this. Former Police Chief Penny Harrington and I had discussed these issues over time extensively as to what are best practices and how to adopt them. The department's had to grapple with this pressing issue in prior investigations including at the management level so hopefully at that time this status quo of not having an investigative/interrogative procedure in writing was in fact changed.

The commitment to addressing a hostile working environment pertaining particularly to gender was also in a preliminary draft of the 2010-2015 Strategic Plan before your arrival in July 2010.

This email has been carbon copied for informational purposes to the chain of command in your training division. Thank you for your patience in reading this supplementary summary pertaining to this CPRA request.

------------------------

I ask for a determination on this request within 10 days of your receipt of it, and an even prompter reply if you can make that determination without having to review the record[s] in question.

If you determine that any or all or the information qualifies for an exemption from disclosure, I ask you to note whether, as is normally the case under the Act, the exemption is discretionary, and if so whether it is necessary in this case to exercise your discretion to withhold the information.

If you determine that some but not all of the information is exempt from disclosure and that you intend to withhold it, I ask that you redact it for the time being and make the rest available as requested.

In any event, please provide a signed notification citing the legal authorities on which you rely if you determine that any or all of the information is exempt and will not be disclosed.

If I can provide any clarification that will help expedite your attention to my request, please contact me at 951-233-4205. I ask that you notify me of any duplication costs exceeding $0 before you duplicate the records so that I may decide which records I want copied.

Thank you for your time and attention to this matter.

Sincerely,

Mary Shelton

Independent Citizen Monitor of the Riverside Police Department

 

 

 

 

TO BE CONTINUED....

Internal Affairs Division

 

April 2010

It looks like the lawsuit that Riverside Police Department officer Neely Nakamura filed against the city and four police department employees will be heading to jury trial next week. Riverside County Superior Court Judge Ronald Taylor issued rulings not favoring the city's motions to get the lawsuit thrown out before it sees the light of day.  The defendants were the city, Deputy Chief Mike Blakely, Lt. Mike Cook, Sgt. John Capen and Sgt. Frank Assumma. All of them worked in some capacity for the internal affairs division, which is an agency umbrellaed under the chief's office who at the time was Interim Chief John Delarosa.  Only as it turned out it really wasn't under his command because he would become "invisible" but that'll be detailed more later on.

The morning of April 4, attorneys for both Nakamura and the city spent time behind closed doors in Taylor's chambers fighting over whether or not there will be a trial and if so who'll testify. The main bone of contention involves the testimony of former Deputy Chief Pete Esquival who according to Taylor's ruling will be testifying from the witness stand during the trial.

But after the court of appeals refused to stay the trial proceedings, a jury was selected and the trial got started. 

Minus one defendant.  

Actually first the defendants filed a motion to get Taylor kicked off the bench as the judge but that didn't happen. Taylor who retired from the bench and then returned to hear cases would be the trier of  law.

Then Taylor discharged Assumma from the list of defendants after he decided that Assumma had just been following orders.  He's still set to testify later on in the trial.

That still left the rest of them and Blakely acting as the case agent for the defense.  Nakamura sits at her table with attorneys from Lackie, Dammeier and McGill while the city has Blakely along with three legal eagles most likely from an outside firm.

The witness list is not very long. Nakamura, the defendants, Assumma and some blasts from the past in the form of Deputy Chief Pete Esquivel, former Asst. City Manager Tom DeSantis and former police chief, Russ Leach.

The witnesses are featured below along with a couple who weren't on the witness list.

Nakamura testified first and I missed most of the initial direct testimony but dropped by for the afternoon session.  The defendants sat in the audience along with Riverside Police Officers' Association President Brian Smith.

A female attorney cross examined Nakamura and spent most of her line of questioning on the sexual relationship between her and Esquivel and the violations of departmental policy.  As well as some questions on whether or not documentation of both POBAR (Police Officer Bill of Rights) and Lynberger (the right to remain silent except in an IA investigation)admonition.   I wasn't surprised to see a female attorney take the lead in the cross-examination for the city and the defendants as that's often the case to keep the jury from thinking the witness who in some cases but not this one might be a victim of sexual harassment is being beaten up by a male attorney.  She seemed to be more aggressive in trial law and procedure than Nakamura's male attorney  Lots of objections flying out and Taylor seemed to be fairly down the middle, not favoring one side over the other which must have greatly alleviated the city's concerns that it had about him when they tried to get him tossed.

Nakamara appeared a bit nervous but poised during what must be very difficult testimony. Hers would by its nature be the trial's most difficult because no other witness has to talk about their sexual history in a department which according to what one witness testified had its last sexual harassment investigation in 2012.  She testified about how humiliated she felt about being acted the personal questions and that the experience was degrading.  The intimidation of being pressured to get into a car in the parking lot at Magnolia Polices Station to be driven by two sergeants all the way across town to the downtown bus terminal which housed the Internal Affairs Division and how she felt unable to leave due to the demeanor and words of the officers there and not having transportation with her.

It was the lawsuit filed by her in 2011 fleshed out in greater detail that comes with spoken words.  But what caught people's attention was the part at the very end of her testimony where she talked about receiving a written reprimand once she'd turned from "witness" or sexual harassment "victim" to "person of interest" and later "guilty person".  Maybe some people would have said that was harsh discipline but she said she accepted it and considered it lenient.

She would be right and that fact struck some people as a bit odd.  Pressure someone in a car without warning, interview them about intimate activities in a conference room, leave them there for a period of time and then some hours later, driving back.  All that and a written reprimand but Nakamura testified to why she felt that she'd received that relatively minor discipline for admitted violations including conduct unbecoming of an officer and a conflict of interest.

"I don't think it was me that they were after," she said, "They were after Pete Esquivel."


Those were her final words on the stand.   An impression on the jury from her before the next witness hit the stand which was Blakely.  

I'd been away with my injured shoulder for a while but I was once again reminded of the police department's dynamic of Spy versus Spy as soon as Blakely started his direct as a hostile witness for Nakamura's side.

Seriously, I was intrigued immediately by his rather descriptive view of life inside the upper echelon of the police department's management including the administration of the Internal Affairs Division. When Nakamura's attorney asked Blakely if he were the head of that division, he said no, that job fell to the police chief and that in between him and the chief was the assistant police chief who during that time period would be John Delarosa.  He then became the acting or interim chief when then Chief Russ Leach took his medical retirement after the infamous Super Bowl Sunday DUI crash.

That investigation led to a fissure in the Internal Affairs Division in that Lt. Cook and two sergeants were loaned out to reporting to then hired consultant from Best, Best and Krieger, Grover Trask. The former District Attorney was paid to oversee the Leach investigation and that left two sergeants in Internal Affairs working under Blakely.

But when it came to investigating a situation that would arise involving Esquivel, Blakely decided not to report any concerns about it to Delarosa but instead went straight to DeSantis as well as City Attorney Greg Priamos.   And in that point of his testimony, Delarosa became "Johnny Who" or the "invisible chief" because considering he and not Leach was the chief in power at the time, he seemed not only out of the administrative loop but invisible as well. The reasoning was that it'd be a conflict of interest because Esquivel wanted the chief's job, had been vocal about it and had criticized Delarosa's handling of the Leach incident.

Priamos agreed with Blakely's concern and DeSantis gave him the authority to continue the investigation. That's when the testimony started about concerns that Esquivel had too many phone calls, the durations and timing of which particularly Nakamura became a concern needing further investigation.

It was actually Capen who brought up the number of phone calls involving Esquivel and Nakamura and that part intrigued me. I had some familiarity with what Internal Affairs did including the fact that the division itself was closely managed allegedly down to the phone call and key stroke by upper management but I wasn't aware that the division itself was involved with monitoring the  phone calls of other people in such detail. Perhaps on some level it makes sense to be able to immediately deal with irregularities in time and duration and sheer number of phone calls between two parties but on a practical sense, even in a medium sized department it would seem to be a logistic nightmare to keep track of everybody who's making phone calls.

That would take so much time considering Internal Affairs does several dozen internal investigations, perhaps a percentage of the few dozen or so citizen complaint investigations and investigation/reviews of officer involved shootings and deaths. Depending on the year that can be quite a workload for a division that's been downsized a bit since 2010.

Then again perhaps it's possible that not everyone was having an accounting of their phone activity and it was mainly Esquival for whatever reason. Another open internal affairs probe, a history of prior concerns or perhaps idle curiosity.  Whatever the reason, the monitoring of Esquivel's phone activity generated enough interest for further probing and that's where Nakamura allegedly came into the situation.

Blakely testified that he was concerned by the "very unusual" volume, duration and timing of their phone calls but didn't act initially because Nakamura was supervised by Esquivel except for the fact that he also told the jury that particular supervisory dynamic concerned him too.  So much so he bypassed the invisible acting chief and went to the defacto chief DeSantis for further counsel on this situation involving Esquivel and what he thought might be his sexual harassment of Nakamura.  Priamos' office was asked to provide guidance as well.

The invisible chief was left out of the loop out of concern that there might be a conflict of interest which was one way of saying that Delarosa wanted the police chief job too without actually saying it.  The defacto chief thus made the decision about the internal affairs investigation but then again the invisible chief was also being investigated in the Leach DUI probe by the city though DeSantis would also allegedly face his own struggles with a similar situation on his own watch with a subordinate employee.

When Blakely was asked about his own relationship with Esquivel, he said he found him to be competent and they worked well together in a "harmonious" manner.  But then returned to the issue of DeSantis, the defacto chief giving him authority to continue doing the investigation of Esquivel's phone activity.

He and Cook were part of a meeting to decide how to handle it including Nakamura. The decision was made to handle her in a "discreet" manner. Capen and Assumma were included in the investigative team due to familiarity with the investigation whether this one involving Esquivel or another one involving Esquivel wasn't clear by his testimony.  But what is fairly well known now is that Esquivel had more than one investigation pending against him.

The decision was made to get hold of Nakamura in a "discreet" fashion because tipping her off about the investigation or its nature might compromise it. Okay but then it got a little bit confusing as to what was "discreet" about it. Blakely testified that it worked out quite well...mostly.

"That was pretty much what I was hoping they'd do," he testified.

Then he added that they didn't know that she'd had prior phone contact with Esquivel while driving into the parking lot at Magnolia Police Station where she saw the two IA sergeants, Capen and Assumma.

Yes it definitely makes sense not to send IA sergeants to pick up witnesses inside a police station like Magnolia's in front of other officers which could compromise an internal investigation. Hence the decisions to place Internal Affairs right next to the Neighborhood Policing Center North at the bus terminal not to mention moving Internal Affairs inside the Magnolia Station itself later on.  These decisions even if necessitated by dwindling budget monies do make it seem like officer confidentiality and privacy is a secondary consideration.

But it seems that absconding a police officer in the parking lot of a major facility filled with police officers including others parking their cars would simply attract attention and notice that something unusual is taking place. It'd be hard not to pay attention to it. It's hard to believe that an officer could be in that situation and not feel like the person investigated rather than a "witness" or "victim" of sexual harassment. With the latter in particular, you'd think you'd take steps to avoid victimization again rather than potentially add to that feeling.

Blakely appeared more ill at ease in parts than I thought he'd be considering he's the case agent and is privy to all the testimony unlike most witnesses in court proceedings. Two areas in particular, the one where he explained how the chain of command in the Spring of 2010 didn't include the acting chief or the "invisible" chief and also when Nakamura's attorney tried to do some comparative analysis on comparing what Blakely said started as a sexual harassment investigation with others of that nature that had been done by the department. As recently as 2012 which wasn't a good year for them, and Nakamura's attorney asked if other victims of sexual harassment hadn't been notified ahead of time for interviews, or whether her treatment was an anomaly.  He's probably smart enough to know when he's being set up for a fall on the witness stand but couldn't do much about it.

Then the city's attorney voiced an objection arguing relevance which made it seem all the more like the department's handling of the "sexual harassment" investigation involving Nakamura wasn't like any past similar cases including the one alleged in 2012. 

Blakely returns on the stand tomorrow for some more direct and then he gets "cross-examined" by his own attorney and so forth. On his tail comes DeSantis who's set to testify in the afternoon session.

RPD's Administrative Headquarters

 

Scene of a power struggle?

RPD Officer Neely Nakamura (l.) getting an award with two colleagues for a business awareness conference 

The medically retired ex-deputy chief will be testifying at the trial

 

 

Will Deputy Chief Mike Blakely be hitting the witness stand and if so what will he have to say?


Witness and Case Agent for the City

And what of former Asst. and Acting Chief John DeLaRosa, will this blast from the past be on the witness test as well to provide his account of events?

Not on the Witness List but Acting Chief and head of Internal Affairs




The former Police Chief Russ Leach is also scheduled to testify.

Witness and former police chief



 

 Yes the former assistant city manager who wanted to be police chief will hit the stand.


Witness and ex-Defacto Police Chief

Current Police Chief Sergio Diaz

Not a witness but no doubt celebrating an RPD lawsuit finally making it to trial.


To Be Continued...

Deputy Chief Mike Blakely seemed much less nervous during his second day of testimony at the trial particularly when the city's attorneys used him as an "expert" witness on the policies and procedures of the Internal Affairs Division including internal investigations.  He testified that Nakamura was given only a written reprimand for her policy violations for several reasons, one of them being that he didn't want to chill the reporting of sexual harassment by victims of it.  That she'd been honest about the conduct and that was to be commended. That the written reprimand would remain permanently in her file in case there was another instance of similar violations in the future.

But even before Blakely hit the witness stand again, both lawyers had a disagreement about the scope of questioning for former Asst. City Manager Tom DeSantis who would be testifying that afternoon. Mainly whether or not he could be questioned about his affair with a subordinate city employee that allegedly occurred in 2010.   Obviously the city's own attorneys said no, that it had no relevance even though it seems more than ironic that having the fate of Nakamura decided by someone who'd himself allegedly had an in the workplace affair with his subordinate employee was very palpable in the courtroom.

Taylor ruled tentatively against the admissibility which he later formalized though he told Nakamura's attorneys that if DeSantis said anything that might open the door...then he could bring it up in questioning as long as they side barred it first.

 

 

"I'm extremely concerned about Time Card Fraud."

 

Oh really, Mr. DeSantis?

DeSantis did hit the stand and proved to be calm during most of his time on the stand though he got edgy towards the end. He said that when Esquival came to see him with Cook in tow, that he had said that he was planning on retiring or resigning and then the conversation became more along the lines of how to ensure that he did it all the way down to retirement parties with the dignity and respectability afforded a veteran police management employee. It seemed ironic that though Esquival was viewed as the employee with the most responsibility or blame in the situation according to Blakely and DeSantis had more associations in their respective testimonies especially that of DeSantis with allowing or ensuring for dignity and respect in how they were treated.

But DeSantis kept saying that his greatest concern in the whole situation was whether or not there had been fraud committed by Nakamura and Esquivel in the form of Time Card Fraud.  He mentioned that at least a half a dozen times under oath and Nakamura's attorney didn't act on it.  The city's attorneys including the lead counsel were sitting there just waiting for him to do that and yet he didn't because there was enough information on DeSantis' situation to at least consider that if he had his affair with his subordinate on city time then he might have been guilty of that type of fraud as well.

The most telling moment was when Nakamura's attorney ended his re-direct questioning and then the city's junior attorney hesitated when asked if she had any more questions as everyone waited for her answer. She glanced briefly at the senior attorney and then said no, which effectively removed DeSantis from the witness stand.

Next up is former Deputy Chief Pete Esquivel who will be testifying in the morning. It remains still to be seen which one will show up.   After him there will be former Chief Russ Leach and the trio of employees who may or may not avoid being set up as the fall guys.

A familiar pattern and practice in the RPD.