Sunday, April 12, 2009

Prosecuting Police an Uphill Battle

Each time a police officer uses deadly force, wounding or killing a civilian, prosecutors gather facts and grand jurors weigh whether the actions may have been criminal, rarely returning indictments. Even less common, according to a Houston Chronicle review, are cases where an officer is convicted.

Last week’s indictment of Bellaire Police Sgt. Jeff Cotton, a white officer who shot a black man in his own driveway in an incident that raised allegations of racial profiling, marks the first time in more than three years that an officer in Harris County has been charged in such a shooting, the Chronicle found in a review of police prosecutions. In recent years, local officers have shot an average of 32 people.

Such incidents, ranging from a drunken off-duty officer’s 1989 shooting of Ida Lee Delaney in a traffic spat to the 2003 gunning down of two unarmed teens, have ignited community outrage. But, lawyers say, prosecutors in cases against those sworn to protect and serve have an uphill battle.

Only once in more than a decade has a Harris County jury found an officer criminally responsible for injuring or killing a citizen with a weapon.

The law is forgiving, lawyers said, and an officer can justify his use of deadly force by claiming he perceived grave peril to himself or others.

“Jurors will give police officers more credit because they put themselves in harm’s way to help others,” said Joe Owmby, who until December headed the police integrity division of the District Attorney’s Office and investigated numerous officers. “Jurors will bend over backward to hear it from the (officer’s) point of view, but if it appears an officer did not do what he was supposed to, they are more skeptical.”

Deadly force cases are emotionally charged, observed South Texas College of Law’s Geoffrey Corn. “These are hard cases,” he said. “I have a visceral reaction to those who say these cases aren’t fair, that juries don’t convict enough. … When we start saying that juries are incapable of trying this type of case or that, we kind of gut our concepts of justice. Juries are not always right, but if the process is fair, the outcome is respectable.”

Case in 2007 typical

Typical of many cases was Harris County’s most recent deadly force prosecution, that of two Pasadena policemen accused of killing Pedro Gonzales Jr. in July 2007.

Gonzales suffered eight broken ribs and a punctured lung as officers Jason Buckaloo and Christopher Jones used force to arrest him. They were indicted on charges of criminally negligent homicide.

Testimony in their trial revealed Gonzales was not intoxicated at the time of his arrest, as the officers suspected, but may have been suffering severe alcohol withdrawal.

Jurors acquitted the officers, who returned to work.

Owmby, who prosecuted the case, said jurors’ perceptions of Gonzales, a chronic alcoholic who often slept on the street, affected the outcome.

“The problem we had was that Mr. Gonzales was so ill, the jury just did not want to blame the police officers for what happened,” he said.

The only recent conviction of an officer in a fatal shooting came in a case with a sympathetic victim: a 14-year-old boy who had been playing video games minutes before an officer killed him.

On Nov. 21, 2003, Houston Police officer Arthur Carbonneau approached a group of youths, looking for two teens who had assaulted a 10-year-old boy. Eli Eloy Escobar, who had not been involved in the assault, tried to leave. Carbonneau detained him. During the scuffle, Carbonneau’s firearm discharged.

A grand jury indicted Carbonneau on a murder charge and he was convicted of criminally negligent homicide — the lightest conviction option — and got 10 years’ probation. The judge required him to serve 60 days in jail.

Owmby, who prosecuted Carbonneau, said he sees similarities between that case and the one against Cotton, 39, who is charged with aggravated assault by a public servant.

“It appears that in both cases we had an officer who overreacted, who never slowed down to evaluate what was happening and pulled the trigger when it was not necessary,” Owmby said.

Mistake on SUV’s plates
Cotton shot 23-year-old Robert Tolan, a former Bellaire High School baseball player, just after 2 a.m. on Dec, 31. Tolan and a cousin were returning to his parents’ house after getting off work at a restaurant.

An officer ran the plates on Tolan’s SUV but pulled up the wrong information, leading him to believe it was stolen.

Several officers approached as the men exited the SUV, ordering them to the ground. At one point, Tolan raised up to protest the treatment of his mother, who had come outside. Cotton fired several times, striking Tolan once in the chest.

Cotton’s lawyer said last week that he will prove Cotton’s actions were justified.

“When we get our day in court it will come out that the indictment against him was not warranted,” said David Donahue, a spokesman for Cotton’s lawyer, Paul Aman.

The case against Cotton will be prosecuted by Clint Greenwood, who joined the District Attorney’s Office in January after District Attorney Pat Lykos asked him to head the police integrity division. Greenwood, a peace officer who defended a number of policemen in his private practice, said he anticipates the Cotton case will be “a difficult case for both sides.”

He added, “Cases where a police officer is the defendant can be extremely difficult due to conceptions by the community at large. But, it is my job to advocate on behalf of the citizens of Harris County and I will do so vigorously.”

Another case involving police that resulted in a conviction was the 20-year-old fatal shooting of Delaney, a 51-year-old janitor killed in an encounter with three off-duty Houston officers after they had been out drinking.

The officers approached Delaney after a traffic altercation. One, Alex Gonzales, in civilian clothes and wearing no badge, charged her car with pistol drawn. She fired at the officer, striking him in the belly. He fired back.

Gonzales was tried twice and eventually convicted of voluntary manslaughter, receiving the minimum penalty — two years probation and a $5,000 fine. His light treatment prompted protest.

Former City Councilwoman Ada Edwards, who participated in those protests, called the outcome a “miscarriage of justice. I was not a jury member … but this was murder.”
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Search for Double Murder Suspect Deputy Derrick Yancey Continues

Acting on a tip, authorities searched three Greyhound buses in Dalton early Sunday morning for former DeKalb County deputy and double murder suspect Derrick Yancey but came up empty-handed.

The DeKalb Sheriff’s Department was called about 12:45 a.m. by someone who said they thought they saw Yancey standing in line to board a bus at the Greyhound bus station in downtown Atlanta, said Mikki Jones, spokeswoman for the DeKalb Sheriff’s Department.

DeKalb County news Authorities learned that three buses left the station at about that time headed for Dalton, with final destinations of Chicago and Cleveland, Ohio, Jones said. The buses were checked at a Pilot Travel Center by local authorities in Dalton, she said. Yancey was not found.

Yancey, 49, is accused of killing his 44-year-old wife, Linda Yancey, and a 20-year-old day laborer, Marcial Cax Puluc, last summer.

Officials said Yancey disappeared from his mother’s home last week after cutting off his electronic ankle bracelet. A judge had released Yancey on $150,000 bond under the condition that he wear the tracking device and remain under house arrest.

The Fugitive Squad can be reached at 404-298-8200.

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Officer Bobby Cole Faces Losing Job After he Failed to Protect and Serve

Officer Bobby Cole is facing losing his job next week on the Dallas police force after investigators found that he failed to protect and serve.

In one case, internal investigators found that he didn't arrest a robbery suspect. In another, he failed to charge a man with family violence, records show.

Cole, a nearly seven-year veteran, had a hearing Thursday in front of Assistant Chief Floyd Simpson, who recommended that he be fired. Police Chief David Kunkle is expected to make a final decision this coming Thursday.

In the first situation, Cole and another officer were working off duty security at a club on the North Central Expressway on Feb. 4, 2008, when they intervened to stop three robbers who were holding a man at gunpoint.

Two of the suspects fled. Cole and the other officer captured the third.

The victim, Josh Goad, told investigators that the suspected robber had told the officers that he could take them to his accomplices. He said the officers asked for his contact information and told him that they would be in contact.

After Goad left, the suspected robber was released. The officers did not file a police report, nor they notify did anyone that armed robbery suspects were on the loose.

In the meantime, two more robberies happened. Police captured the suspected robbers, including the one who the officers had released.

In his statement to investigators, Cole said the victim wasn't able to identify the third attacker, so he didn't think he had enough evidence to arrest him. He also told investigators that he didn't broadcast a suspect description over the radio was because his battery was dead.

"I was going to call in the Aggravated Robbery report when I got home and I forgot," Cole wrote in his statement to investigators.

The other officer, Irene Alanis, told internal investigators that Cole took charge at the scene and interviewed Goad. She said Cole was the lead officer at the scene and made the decision to release the suspect.

She has received a written reprimand over the incident.

"Thinking back, I should have done things differently," Cole told investigators. "I am truly sorry if (in) anyway the department's name was tarnished due to my actions."

The second incident occurred Feb. 11 when Cole and another officer responded to a report of a disturbance.

When Cole arrived, he said he spoke to the alleged victim who told him that a man had hit her and pulled her hair.

The man was taken into custody for outstanding warrants, but was not arrested on suspicion of family violence.

Cole didn't tell the other officer that the woman had claimed the man attacked her, investigators concluded.

In 2004, he also received a 15-day suspension for violating the department's sick leave policy, lying to a supervisor and making a false statement.

Officer Joseph Frugoli Bond Set at $500,000

Bond was set at $500,000 Sunday for an off-duty Chicago Police detective accused of killing two men when he allegedly plowed into a disabled car in a drunken-driving crash early Friday on the Dan Ryan Expressway.

After the hearing, a family member of one of the victims was taken into custody after a disturbance in the hallway that spilled out into the street, authorities said.

Joseph Frugoli, 41, of the Bridgeport area, was charged Friday with two counts of aggravated driving under the influence, two counts of reckless homicide and one count of leaving the scene of an accident, said Sally Daly, spokeswoman for the Cook County State’s Attorney Anita Alvarez.

Frugoli was ordered held on $500,000 bond at a Sunday hearing at the Cook County Criminal Courthouse at 3100 S. California Ave.

About 70 friends and family members of the two men killed in the crash became upset after bond was set and raised their voices in the courtroom hallway, Cook County Sheriff’s police spokesman Steve Patterson said.

Once outside the building, the group began telling strangers the bond was a travesty and Sheriff’s police took one of the family members into custody for his own safety, Patterson said. He was released without being charged.

Frugoli was taken into custody Friday after he drove his black Lexus into a red Dodge Intrepid that broke down in the southbound lanes of the Dan Ryan Expressway (I-90/94) near the 18th Street ramp, authorities said.

Frugoli, an 18-year-department veteran, was taken to Northwestern Memorial Hospital, where tests indicated his blood-alcohol level was about triple the legal limit of .08, sources said.

The officer was walking away from the crash scene when he was apprehended, police said.

A bystander, Marcus Copeland, said he tried to pull the victims from the burning Intrepid shortly before 4 a.m., but the flames were overpowering. “I couldn’t do anything,” he said.

One of the victims was Andrew Cazares, 23, of Summit, who attended Argo Community High School. Cazares worked construction and continued to live with his family in the 7700 block of West 62nd Place. Friends said he was a talented skateboarder and graphic artist.

Alexander Myles, 14, said he and a buddy were skateboarding one day when Cazares noticed their lack of skill.

“He said, ‘You guys want to learn some tricks?’” and gave the younger boys some lessons, according to Myles.

The Illinois State Police identified the other victim as Fausto Manzera, 21, of Chicago.

Manzera was a student at DePaul University, according to his friends, who said he was artistic, too. He and Cazares may have been on the way to Manzera’s father’s home in Bridgeport where Manzera stayed.

“He was just a wonderful friend. He will be truly missed,” said a friend, Claudia Godinez.

The Chicago Police Department released a statement saying Frugoli has been relieved of his police powers. In addition to the traffic investigation being conducted by the State Police, the Chicago Police Department launched a probe by its Internal Affairs Division.

Frugoli has been involved in other serious wrecks, including one not far from the scene of Friday’s fatal collision and another that injured two police officers.

Just last week, Frugoli was ordered to pay $7,100 to Joseph Cairo after a jury trial involving a 2005 accident.

Frugoli was driving a new BMW sedan that rear-ended Cairo’s Jeep Cherokee on the in-bound Dan Ryan near 31st. Cairo, 65, struck a median and suffered neck and shoulder injuries, while Frugoli went to the hospital for a head injury, records show.

Cairo’s lawyer, Benjamin Kelly of the Vrdolyak Law Group, said Frugoli gave two stories about the accident: he told the State Police at the accident scene that he did not know what happened. But in a legal deposition, Frugoli said Cairo slammed on his brakes, causing the crash. Kelly denied that Cairo caused the collision.

Both men live in the Bridgeport neighborhood near the site of their collision.

Frugoli’s other accidents include a collision near the intersection of 37th and Wallace in Bridgeport when he allegedly ran a stop sign and struck a Chicago police car, injuring two officers, records show.

SWAT Tactics Examined after Oakland Cop Killings

Law enforcement experts call residential entryways the "fatal funnel" _and that is where two Oakland police officers met death when they confronted a barricaded gunman, who allegedly had already killed two other officers hours earlier. The SWAT team's decision to rush an apartment rather than wait out an armed man is expected to be the subject of Special Weapons and Tactics training classes across the country, experts said.

And the Oakland Police Department said Friday that its internal investigation of the March 21 killings will include a review by outside SWAT experts.

It was the deadliest incident involving California officers since 1970.

Lawyers, police trainers and others expect the examination to determine whether police followed departmental guidelines and whether they made tactical or procedural mistakes.

Police say parolee Lovelle Mixon shot motorcycle patrolmen Mark Dunakin and John Hege with a handgun during a traffic stop, then later killed SWAT team members Ervin Romans and Daniel Sakai with an assault weapon. Another SWAT officer was injured, and Mixon was killed.

Police have not said why Dunakin and Hege stopped Mixon. The two patrolmen were killed without drawing their own weapons.

After that shooting, investigators said, Mixon fled a few blocks away to a sister's apartment. An anonymous tip exposed Mixon's hiding place- and about two hours after the traffic stop the SWAT team stormed through the apartment's front door, detonating flash-bang devices.

Much of the focus outside the Oakland department has been on the SWAT team because the highly trained officers were killed while in pursuit of someone they believed already had gunned down two of their colleagues.

The department's written guidelines for resolving such situations begins with "containment" but also includes "breach and entry of objective site" among 10 options.

"In any event, a resolution will be accomplished with the utmost consideration given to the safety of citizens, police personnel and all involved parties," states the department's general orders for SWAT operations.

Police officials have said the SWAT team entered the apartment to clear and search it, but precisely what prompted their decision is unclear.

The department turned down requests to interview a SWAT team commander and Police Chief Howard Jordan.

"The whole incident is still under investigation and OPD is not releasing any details or reports," police spokesman Jeff Thomason said in an April 2 e-mail. "This is to protect the integrity of the investigation until it can be completed."

Law enforcement experts said that without knowing more about the circumstances, it is difficult to second-guess the officers' actions.

Some speculated that the SWAT team decided to enter the apartment because they feared waiting for the gunman to give up could result in more violence and harm to building occupants.

They said the officers faced one of the most dangerous scenarios in law enforcement: a gunman holed up in a residence and presumably training his sights on the entryway.

"I don't see where it was necessarily prudent for the officers to go in when they went in," said Michael Lyman, a criminal justice professor at Columbia College in Missouri, who based his comments on publicly available information. "Unless there is compelling need to go through that fatal funnel, don't do it."

Ed Nowicki, executive director of the International Law Enforcement Educators and Trainers Association based in Twin Lakes, Wis., said the people inside the building always have the advantage over those outside, simply because they have more knowledge.

"It's their turf, not your turf," he said.

Nowicki said SWAT officers should avoid storming a residence unless there are strong signals that a gunman is on the verge of more violence.

"You go in pretty much as a last resort," Nowicki said. "And if you don't have to, you don't. If you can wait them out, you wait them out."

Experts widely agree that the Oakland police shootings will be one of the most widely studied cases in law enforcement training.

It will certainly alter SWAT training in some way, said Robert Stresak, a spokesman for the California Commission on Peace Officer Standards and Training.

"It is a watershed law enforcement moment," Stresak said. "Obviously, when four heroes are killed, something didn't go right."