Justice Delayed is Justice Denied

March 2, 2005. Another day of work for Senior Correctional Deputy Mike Vernal and his fellow deputies assigned to Robert Presley Detention Center (RPDC).

An inmate named Daniel Leonard was apparently angry because he did not have any toilet paper. He yelled threats to the deputies that he was going to “gas” them (you all know that means throwing feces and urine at deputies). Because of the threat, it was decided to move Leonard to a different cell, in a location that minimized his “window of opportunity” to throw feces and urine at the officers.

Several deputies accompanied Vernal to relocate Leonard to the other cell. The idea was simple: go in, restrain and cuff Leonard, and move him without incident to the other cell.

Leonard was having none of that. He was aggressive and non-compliant, even after being handcuffed, requiring Vernal to “pin” him against the wall and a glass window. This forcible maneuver caused Leonard’s face and body to violently contact the wall and glass. This wasn’t intended, but neither was it unexpected. Such injury mechanisms frequently are involved when a resistant inmate is forcibly “pinned” against a wall.

After 30 years of defending these kinds of cases, it always comes down to the same question for the decision-maker (be it the chief, the sheriff, an arbitrator, a prosecutor, a judge or a jury): Was it an unintended injury, resulting from the reasonable use of force; or, was it a gratuitous infliction of injury for the purpose of punishment or retaliation for some perceived insult? The answer to that question means either “no misconduct,” or “a crime.”

What does all of this mean for you? Let’s assume you are a typical deputy or officer, out there every day, trying to do the job the best way you can. Sure, you rail against laws and court decisions that over-emphasize criminals’ “rights” and that de-value the community interests in safety and peace. You are sick to death of having to put up with assaults, insults, threats, and even greater crimes committed against you by criminals, just because you are doing your job and your duty.

But you don’t move the line. You are not about to forsake the public trust and the badge of your office. You aren’t going to “fudge” on probable cause or write any false reports. You aren’t going to use excessive force, even when the facts would enable you to because some force is required, but you know and understand that more force is not better, nor is it legal; you will restrain yourself in the temptation to “teach lessons” even when they seem to be the most pragmatic way to get your point across to a knucklehead.

You recognize that when a cop begins to perceive a blurring of the lines between right and wrong, the process of corruption is underway. It isn’t always about money and financial profit—morals can be corrupted by much more than money; sometimes it is as simple as “the ends justify the means,” or more to the point “it’s the only justice this jackass will ever be dealt.” But you are one of the ones we call “untouchable.”

You will not move the line. Regardless of profound provocation, you are going to do it the right way. That’s what you are paid to do. And, that’s why we all need you, more than you will ever know. You recognize wrongdoing immediately. You have conditioned your response to wrongdoing according to your own moral compass. When you see wrongdoing, you know it, and you know what to do. You do it because you demand it of yourself. You don’t need direction from a supervisor.

So there you are A typical deputy or officer, like Mike Vernal. You deal with “Daniel Leonards” hundreds of times throughout your career. But then somebody, who has the authority or power to say “No, this was excessive, this was misconduct, this was a crime,” decides that is so. Suddenly, you are thrust into the system, administrative and criminal. Your job is threatened as well as your livelihood, and your liberty.

Simple misjudgments by decision-makers along the way, lousy, result-oriented or biased investigations, agendas, reckless charging decisions, failures to apply objective analysis—all or any of these can send you down a long road like the one traveled by Mike Vernal, who was, after all, just such a “typical deputy” described at length above.

After Leonard was secured in a better location, Vernal made the customary reports and went to clean up and sanitize the blood drops which emanated from Leonard’s collision with the wall and glass. Nothing much to it, but why leave blood-borne pathogens unattended? No big deal. That simple act became Count Two in the criminal case: “Destruction of Evidence.” (The first Count was Penal Code §149 — “Assault Under Color of Authority,” a felony.)

The criminal investigation, which triggered the criminal prosecution, is what it is. Its defects are apparent to all. But when the sheriff’s special team of Administrative Investigations Unit (AIU) investigators went after the case, the result was, shall we say, “180 degrees the other direction.” What looked like a sure termination case based on the criminal submission turned out to be a “no misconduct case” on the force issues. Vernal was reprimanded for a policy violation (not notifying a supervisor before he pulled Leonard out of his cell).

What was a termination case was stopped in its tracks by the sheriff? Vernal was reinstated to duty in the same jail facility, and since has been promoted to a senior deputy, winning a coveted assignment in gang intelligence and monitoring, where he commonly supplies the District Attorney’s office (the same one that was prosecuting him) with audiotapes and intelligence on gang inmates!

Now, one would think that when the persons in charge of Vernal’s prosecution were made aware of the AIU investigation and its conclusions, some thought would be given to re-consider the merits of criminal prosecution. Sadly, that was not the case.

While in state prison, the alleged “victim,” Mr. Leonard, called a watch commander at RPDC, and in a taped conversation offered to “forget” everything about the incident, if the Sheriff’s Department would help him get out of an unrelated criminal and/or civil TRO matter. We gave that tape to the district attorney. “OK, now will you consider a disposition?” No response.

So, on June 5, 2009, at Master Calendar call in State Court, we answered the court’s question with “ready for trial.” The people said, “We will not take this case to trial.” Judge Webster then dismissed the case “in the interests of justice.” What??? “Interests of justice???” Justice delayed is justice denied.

How can this happen? The entire process lasted over four years. The incident occurred on March 2, 2005. Vernal was criminally charged on June 23, 2005. The case was dismissed on June 5, 2009.

But for the objectivity of the sheriff’s AIU investigation and the courage of the sheriff to call it right and reverse the department’s action against Vernal, this fine deputy would have been out of a job and tormented for four years with a serious felony prosecution. It turns out that he was still tormented by the prospect of a criminal trial for four years, but at least his career was saved.

WHAT SHOULD BE DONE ABOUT CASES LIKE THIS? We are all familiar with Skelly v. State Personnel Board (1975) 15 Cal. 3d 533, and Arnett v. Kennedy (1974) 416 U.S. 134. We know that before you take a cop’s job away, you have to comply with certain pre-removal safeguards. The idea is to prevent mistaken or ill-advised administrative decisions that cost the employee his livelihood. Great stuff.

But do we, can we, should we employ such devices before launching a criminal prosecution against a cop or deputy that could cost him his liberty? Doesn’t it make sense that before we present a case to a prosecutor recommending a criminal prosecution against our employee, we activate the same safeguards that we are required to do before we take his job away? Shouldn’t we undertake a thorough administrative investigation before we refer the case to a prosecutor? Sure, we have to be careful about contaminating the criminal case with compelled statements from the accused. But if our administrative investigation discloses evidence that is exculpatory, don’t we need to give that to the prosecutor? Isn’t that Brady material??

Can’t we develop a process, similar to Skelly (or Loudermill for you non-Californians), that ensures high-level staff review of a potential criminal case against an employee, supplemented by internal investigatory fruits, before the case is referred to prosecutors? Why do we adhere to this meet-ax approach defining “criminal” and “administrative” even at the risk of ignoring the “truth of the matter?” And, worst of all, delay the administrative investigation until the criminal is “resolved?”

A number of agencies as a matter of internal policy, delay conducting an administrative investigation until the companion criminal case is resolved or at least rejected by the prosecutor.

In my view, no case should be presented to a prosecutor until the department has thoroughly investigated every aspect of the case, whether by criminal or administrative means and is therefore confident that the prosecutor has all the necessary and relevant information before deciding to file, subject to constitutional requirements imposed by the Fifth Amendment. That process, had it been invoked, would likely have saved Mike Vernal four years of torment for which he will never be compensated. Think about it. STAY SAFE!

About the Author

Michael P. Stone is the firm’s founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 30 years, following 13 years as a police officer, supervisor, and police attorney.