ROCKLIN POLICE OFFICER ACQUITTED IN USE-OF-FORCE CASE — PART 2

MICHAEL L. RAINS
Principal Attorney
Rains Lucia Stern St. Phalle & Silver, PC

For the background of this case, see Part 1 in the August issue of PORAC Law Enforcement News.

The Trial
If the initial charging of Officer Brad Alford was hasty and ill-thought-out, the thought given to prosecuting this case was shoddy and superficial.

The prosecutor assigned to the case was young, and by all accounts a very decent guy. No doubt he likes cops, and no doubt he had marching orders to prosecute Alford. For reasons I could never understand, the DA’s Office retained as an expert in use of force a former police chief from Henderson, Texas (population 17,000, 34 police officers, approximately 50 miles from the Louisiana border in a very rural area), to testify that Alford’s use of force in this case was unreasonable. The DA’s “expert” had never previously qualified as an expert in any California case involving use of force and had only been to California twice to do any training involving police officers prior to testifying at trial. He had no idea what the acronym POST stood for, let alone any idea of the criteria outlined for police officer use of force in POST Learning Domain 20 or arrest and control tactics in POST Learning Domain 33. I had challenged his qualifications to offer any type of opinion on use of force at the preliminary hearing, although the judge had overruled my objection. With the DA possibly concerned about the strength of his “expert’s” testimony at trial, the DA tried to “shore up” his lack of expertise by calling the former IA lieutenant at Rocklin P.D., who had opined that Alford’s use of force was excessive after simply reviewing the video for 30 minutes and not even examining any police reports.

I couldn’t pass up the opportunity to ask the IA lieutenant if he could conceive of a use-of-force expert giving an opinion concerning the propriety of an officer’s use of force in California without knowing what POST is or without understanding Learning Domain 20 or Learning Domain 33. The IA lieutenant agreed that such an individual would be ill-qualified to offer an opinion. 

When the former Henderson police chief testified, I asked him if he could envision a situation in which an individual offering an opinion concerning an officer’s use of force would be reliable or accurate if they did not even bother to review the officer’s report in order to understand what the perceptions of that officer were when the officer applied force. The police chief indicated that an opinion offered under such circumstances would essentially be worthless. 

Since the prosecution’s own use-of-force experts had invalidated one another’s testimony, it probably wasn’t necessary for the defense to put on a use-of-force expert in this case. Nevertheless, we called former Berkeley Police Officer and Napa College Adjunct Professor Sean McCann to talk about Learning Domain 20, Learning Domain 33, Graham v. Connor and the importance of knowing and understanding the perceptions of officers at the time the events unfolded. McCann’s testimony was well-received by the jury. While several jurors appeared to be falling asleep and disinterested when the former Henderson police chief was testifying, they were wide awake and paying close attention as McCann testified that the circumstances faced by the Rocklin police officers in this case were just about as “tense and uncertain” as any circumstances an officer could ever face. He cited a study that showed that approximately 20% of police officers who are killed in the line of duty are killed in the very type of stop that was going on in this Rocklin apartment complex parking lot. A juror whom I had the opportunity to talk to after the verdict told me that all of the jurors gave considerable weight to the testimony of McCann in ultimately acquitting Alford.

The Importance of Video Analysis
The admittedly graphic and ugly use-of-force video in this case, which the DA had hoped would secure a conviction, became a powerful tool for the defense in securing Alford’s acquittal. RLS Investigator and Forensic Analyst Bob McFarlane not only has had the advantage of taking a number of specialized courses on the analysis of video evidence, but has also worked extremely closely with our original video forensic analyst, Mike Schott, who has long expressed a desire to retire and has been taking affirmative steps to make sure that happens. Through his formal education and with the assistance of Schott, McFarlane has become very capable at taking video from multiple cameras, such as those in this case, and constructing a “synchronized matrix” that becomes the analytical tool for evaluating movement by officers and movement by suspects during a use of force. McFarlane constructed a synchronized matrix of the five separate videos that captured this event and testified to that at trial. He presented a very helpful visual timeline that showed the 22-second time period of the baton swings by Alford. Even though the former Henderson police chief testified that Alford never paused in using the baton at all, McFarlane showed the jury that he paused at one point for 2.3 seconds and at another time for over 4 seconds. While the former Henderson police chief had testified that Alford continued to strike Perez with a baton after Adams had moved in with her Taser and said, “Let’s tase,” McFarlane showed the jury that the former chief was simply wrong — Alford’s final baton strike had occurred before Adams moved in with her Taser, but she still perceived active resistance by Perez, which she believed warranted use of the Taser. 

Finally, McFarlane was able to show the jury that in all likelihood, Alford’s second or third baton strike to Perez was the blow that broke the bone in Perez’s left wrist, which the DA had alleged as a “great bodily injury,” a factor in aggravation and one that would potentially greatly lengthen a prison sentence if Alford had been convicted. The DA’s “GBI” enhancement virtually disappeared because the former Henderson police chief conceded during his testimony that he thought Alford’s first two or three strikes to get Perez on his knees were lawful and justifiable. Clearly, if the first three baton strikes were lawful and justifiable and if Perez’s left wrist was broken during one of those justifiable strikes, Alford did not commit a crime when he struck Perez in the left wrist, breaking it. 

Jury Instructions and Verdicts
Jury instructions were difficult and cumbersome, as they always are in police use-of-force cases. The standard jury instructions given in California under assault with a deadly weapon do not take into consideration the right of officers in Penal Code Section 835(a) to use reasonable force to effectuate an arrest. There are no standard jury instructions in California regarding Penal Code Section 149, relating to assault under color of authority by a police officer, so we had to request special instructions. Like so many cases that I have tried where we face those charges, I was not happy with the instructions ultimately given by the court, but we have to make do in closing argument with what we get from the trial judge. 

When the dust of this trial cleared, the jury was asked to do the analysis that had never been done by the administration of the Rocklin P.D. or the Placer County DA’s Office — to apply the use-of-force analysis required by the United States Supreme Court in Graham v. Connor, required by POST in Learning Domain 20 and required by the Rocklin P.D. in its use-of-force policy and determine, whether, given the perceptions of Alford, Nitz and Adams, Alford’s decision to use force and the use of force itself was reasonable under the circumstances.

The jury’s verdict was swift — only about two hours of deliberations following the conclusion of instructions. No requests were received for testimony to be reread, and no requests were made to review video evidence. The not guilty verdicts made all of us at the defense table and the supporters of Alford in the audience jubilant that he could return to his family for the first time in over a year and half without facing the infamy of felony charges and a possible prison sentence. 

The Unbelievable Aftermath
Our collective happiness did not last long. Within only a few hours of the jury’s verdict, Nitz and Adams received letters from the Placer County DA’s Office advising them that the DA’s Office was considering placing them on the Brady list for (1) failing to report criminal offenses committed by Brad Alford on September 24, 2017, and (2) giving testimony at trial that was inconsistent with some of the video evidence. 

Pretty amazing, given the fact that the jury had just told the DA that no crimes were committed on September 24, and both the DA’s own expert from Henderson, Texas, and our expert Sean McCann had agreed that an officer’s account of an event will always be different than video evidence. 

We are now waging the fight against this retaliatory, vindictive action by the Placer DA’s Office on behalf of Nitz and Adams, hoping that someone in that office will come to their senses and realize that Nitz and Adams did not report criminal or other inappropriate behavior by Alford on September 24, 2017, because they observed him acting reasonably under the circumstances. They did not see or even hear all of the events that transpired in a span of seconds the way the cameras captured it because they, like Alford, are human — not perfect, just human — and no amount of training can ever change that.  

Brad Alford and RLS join in thanking the PORAC Legal Defense Fund for giving us the resources and the ability to make this acquittal happen. Had we not been allowed to do the necessary video analytical work or call a use-of-force expert of the high quality of Sean McCann, challenging these serious charges and making sense of this graphic video would have placed Officer Alford’s liberty in jeopardy.

About the Author
Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers practice groups. Mike is one of California’s top trial attorneys. He has over 35 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.