Don’t ask, won’t tell

In a volatile meeting with the Sacramento County Board of Supervisors last month, District Attorney Jan Scully said that the board’s proposed $6.4 million in budget cuts would force her to stop prosecuting many misdemeanors and other crimes. Scully also said she would be compelled to terminate consumer- and environmental-protection teams and wouldn’t be able to afford to investigate officer-involved shootings.

“We really don’t want to cut anywhere, but if we don’t have the money to do it, we’re going to have to make some cuts,” explained office spokeswoman Lana Wyant.

But the ramifications of not investigating officer-involved shootings may be particularly penny-wise and pound-foolish. Police-misconduct authorities say the threats of criminal investigation and prosecution are a significant deterrent to rogue cops with a propensity to use excessive force. Without this oversight, police-misconduct incidents, the lawsuits they generate and the large financial settlements that cash-strapped cities and counties routinely pay to settle them, can be expected to increase.

A week after Scully’s confrontation with the board of supervisors, the city of Sacramento agreed to pay $250,000 to the widow of Donald Venerable Jr., who was shot and killed by a police officer in 2001. It was the second settlement stemming from the same incident, and it brought the total government payout in the case to $1 million.

Yet Scully said she would abdicate her office’s responsibility to keep police misconduct in check—to the extent that it can be through the investigation of officer-involved shootings—if her budget is cut.

In fact, Scully has continued to spend public money prosecuting victims of police misconduct, despite promising things would change after the misguided case of Timbya Whitted. Scully’s office was embarrassed by the jury’s swift not-guilty verdict for Whitted, a Marine Corps reservist who had been charged with resisting arrest and with battery on a peace officer. The jury apparently agreed with Whitted’s public defender, Paula Weikel, who argued that the 26-year-old actually had been the victim of police brutality. The abuse was documented by compelling photographs that showed the defendant’s eyes swollen shut and a gash under his left eye that required three stitches to close. Six months after Whitted’s acquittal, his attorney filed a $1.5 million civil-rights lawsuit against the officers whose arrest Whitted ostensibly resisted and against their employer.

Following the Whitted fiasco, Scully issued an uncharacteristic mea culpa in a letter to the editor published in the December 16, 1998, issue of The Sacramento Bee. The county’s top law-enforcement official explained that she had ordered an internal review be conducted “to identify ways we can improve and prevent a recurrence.” And Chief Deputy District Attorney Albert Locher told the press that in the future, similar cases would be evaluated more carefully before the office initiated prosecution. “We should not be taking cases to trial where we get not-guilty verdicts granted in such a short time,” Locher said.

But then, just nine weeks ago, history nearly repeated itself in the case of three North Highlands women who were arrested on the same charges (see “The night they pulled me over,” SN&R Cover, April 10). After an altercation with several Sacramento County Sheriff’s Department deputies last May, Andrea Torres, Precious Williams and Diane Campbell were arrested for resisting arrest and for battery of a peace officer. But 10 months later, just days before the trial was scheduled to start, all charges against the women were dismissed. The attorney for the women, Stewart Katz, then filed a federal lawsuit, alleging numerous civil-rights violations, against the county and the deputies.

The lawsuits associated with both cases allege egregious police misconduct. But Scully refuses to release public records about police-misconduct prosecutions initiated by her office. Three times in the past year, her office has refused to provide those records, which SN&R formally requested under the California Public Records Act. Yet, the same public records were provided by virtually every other district attorney in the state, after the same request was made in each county.

Terry Francke, staff counsel for the capital-based California First Amendment Coalition, said Scully’s refusal to provide the records is a violation of the Public Records Act. “The proposition that this information is confidential is preposterous,” he said. Francke is arguably the godfather of public-records law in California; he also served as legal counsel to the California Newspaper Publishers Association, taught media law at Stanford University and drafted the 1994 revisions to the Brown Act—California’s original open-meeting and public-records-disclosure law. Francke called the rationale Scully’s office gave for denying the request “baloney” and said that disclosure of the records was required by law. “It’s simply absurd, and laughably so, to maintain that that information is not public,” he said.

SN&R’s requests were for information about the number of criminal complaints filed by Scully’s office since 1995 under the Penal Code sections used in police-misconduct prosecutions. In order to compare the number of cases filed in Sacramento County with that of other counties, an identical request was made to each district attorney in the state. Nearly every county complied with the request and provided a list of case numbers, the Penal Code sections used in each case and the names of any officers charged. Scully’s reply to the requests was delegated to her assistant chief deputy district attorney, Locher. He claimed that providing the information was prohibited by state law under specific Government and Penal Code sections—laws he implied other prosecutors violated when they provided the information.

Statistics on officer-misconduct prosecutions are useful in gauging a county prosecutor’s willingness to weed out bad cops and reduce police-misconduct lawsuits. The issue of peace officers using excessive force against the public—and then making an arrest for resisting arrest and for battery of a peace officer, in order to shield an officer from departmental discipline and civil liability for the misconduct—is on the front burner in other parts of the state, as well. “Oftentimes, you’ll hear these things called a ‘CYA’ arrest, meaning they’re going to cover their ass with a charge to insulate themselves from litigation and other administrative punishments,” explained Paul McCauley, a criminology professor and police-practices expert witness.

Such incidents have occurred in other California counties. In fact, the North Highlands debacle has striking parallels with the case of Manhattan Beach police officer Eric Eccles. Last year, Eccles was charged with assault by a public officer and with filing a false report, in connection with allegations that he “assaulted and beat Daniel Wayne Chance under color of authority [and] then filed a false report about the incident,” according to the Los Angeles County district attorney’s office. After being stopped for a traffic violation, Chance allegedly was beaten and then arrested by Eccles. The case ended up a draw: Eccles was acquitted, and Chance was never prosecuted.

Police-procedure experts say that when peace officers use excessive force, make false arrests and doctor reports, it is important for local prosecutors to hold them accountable by using the specific Penal Code sections, 149 and 118.1, designed to dissuade such conduct. If police-misconduct laws are not enforced, law-enforcement officials receive the tacit message that bad behavior, if not condoned, is tolerated. “It’s a rare case where the [district attorney] prosecutes the police for excessive force,” explained police-practices expert Don Van Blaricom. Formerly a patrol officer, detective and chief of police in Bellevue, Wash., Van Blaricom has been retained as a police-practices expert in more than 1,000 court cases nationwide. The ex-cop said that although prosecutors are supposed to apply the law fairly, peace officers often get a pass. “The district attorney and the police always have a close working relationship, and they’re extremely unlikely to prosecute unless it’s just overwhelming evidence,” he said.

In the North Highlands incident, Scully declined to respond to repeated interview requests and written questions submitted by SN&R about whether the evidence, including compelling eyewitness statements, warranted criminal charges against the deputies. Wyant, the spokeswoman, said the office had not opened an investigation into the deputies, and implied that the sheriff’s department was responsible for investigating its own officers. Other prosecutors in the state have been less secretive about their own officer-misconduct prosecutions and seemed somewhat disoriented when they learned that Scully had refused to provide the public records.

Los Angeles County Deputy District Attorney Carolyn Nakaki, who fulfilled the request made to her office, was surprised to learn that Locher indirectly had accused her of violating state law. “It’s interesting to hear that,” she said. But Nakaki diplomatically stood by her office’s decision to provide the records. “That’s this office’s interpretation of the Public Records Act. Other offices may have a different interpretation,” she explained.

Linda Klee, a 31-year veteran of the San Francisco prosecutor’s office also was interested to learn that Locher questioned her compliance with SN&R’s public-records request. Klee pulled out the state code book to see exactly what Locher was referring to. “I’ve never seen that section used [to deny a public-records request], and we’ve never used it,” she said after reviewing one of the laws cited by Locher. “I’ve never heard of this being applied to what they’re applying it to.” Klee also said her office’s policy wouldn’t change, even though she feels her release of the records essentially was voluntary. “This office doesn’t believe it’s illegal to give public information about cases,” she said, “but we don’t believe we’re required to.”

But Francke took strong exception to any inference that disclosure of the records might be discretionary. “It’s absurd to say that a district attorney cannot identify cases that he or she has prosecuted,” he said. “That’s nonsense. There is nothing that is privileged about that information.”