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The Oakland Riders Case: Disappointing Rulings from the Bench; Why There Were No Convictions and Lessons to be Learned

Posted on Thursday, September 01, 2005 at 12:00PM
Posted by Mike Rains

As I stated in the first “Installment” of this story, space, limitations preclude me from getting into the sort of detail I would like to about what happened in the two trials of this case. I harbor enough anger, resentment, disappointment and disgust about the criminal “justice” system’s concerted effort to convict Chuck Mabanag, Jude Siapno and Matthew Hornung to fill the remainder of this entire magazine. But more than anything, I remain frustrated that two juries heard only a smattering of the ugly truth, and that those who read this article will still not know how hard the fight was to get what we got.

I have had the honor and privilege representing police officers for over two decades, and I feel no need to promote myself, or to extol the great intellect and capabilities of my co-counsel in this case, Bill Rapoport and Ed Fishman. The honest story about the “Oakland Riders” is not one involving a brilliant defense of three crooked cops. The honest story is how quickly the politicians and police department leaders turned their backs on these guys when it became clear that management’s policy creations and mandates might become implicated, which could jeopardize their political hides. The real story of the Riders is how those politicians and police department leaders directed an entirely fraudulent Internal Affairs investigation to erroneously point the finger at individuals who had previously been getting pats on the back for their good police work, and then co-opted the resources of the district attorney’s office to insure that the ugly truth behind this prosecution never saw the light of day.

In two separate trials, the Alameda County District Attorney’s Office gave juries 51 separate “chances” to convict Mabanag, Siapno and Hornung. Alameda County District Attorney (DA) Tom Orloff selected smart, experienced, hard working and capable prosecutors to get the convictions done. The D.A. had the best forum possible – cops rarely “win credibility “contests” with suspects in front of Alameda County juries, and the start of our first trial was marked by a federal civil jury in Oakland awarding individuals in a totally different case millions of dollars in damages as a result of alleged false arrests by Oakland police officers, including punitive damages for the alleged misconduct of the officers.

If that weren’t bad enough, the defense was saddled with the “problem” of Frank Vasquez being a fugitive, a factor which was reported in virtually every story written in every newspaper or told on every news station in the Bay Area during both trials. Why would Vasquez, a named co-conspirator in the charging documents, flee the country if he did not commit criminal acts? That question was in the minds of every juror, and it created a public relations nightmare for the defense, especially for Rapoport, since Siapno had been Vasquez’s partner in virtually every incident which Siapno was charged with. Before I tell you why there were no convictions, let me tell you why the prosecution came as close as it did.

Politics and the “Bench”

Make no mistake about it – this case was intensely political from the outset. Indeed, the intensity of the politics was the focal point of our Motion to Change Venue for the second trial. I urge you to go to the PORAC/LDF web site and read excerpts of the Motion to Change Venue due to the influence of politics on the right of these guys to get a fair trial.

Although in the ideal world judges are supposed to make rulings and decisions without regard to politics, it is hard to expect judges to divorce themselves from those Hornungers or potential influences. We saw the influence of politics on both trials, but particularly the second one.

The judge in the second trial almost summarily denied my motion to exclude testimony and evidence about the “code of silence.” I argued that this type of testimony allowed the prosecution to discredit virtually every police witness for the defense by simply accusing them of being part of “the code” even though their testimony was not discredited or impeached in any other way. I also argued that allowing the jury to hear testimony that the “code of silence” was sinister punished any defendant who invoked his Fifth Amendment right not to testify and remain “silent.” The judge seemed unimpressed. I understand that a “code of silence” in police departments can lead to the cover-up of wrongdoing, and needs to be discouraged in police work, as well as any other profession.

I have come to grips with the reality that I would be little more than a hypocrite if I were going to write this article without commenting on some of the obstacles we faced from a man wearing a robe. After all, is a “code of silence” engaged in by the people who have passed the bar somehow less sinister than one engaged in by people in uniforms? I don’t want to be part of a “code of silence” for anyone, including those in my own profession. So here it goes.

After the conclusion of the first trial, my “sources” at the courthouse told me that word had spread that somehow the defense had taken advantage of the first trial judge, getting him to agree to individualized voir dire (which allowed us an exceptionally good opportunity to get to know the thought processes of each potential juror) and obtaining a ruling allowing us to at least introduce some evidence concerning Project SANE and the department’s “zero tolerance” street level drug dealing program.

From the very first day we appeared for pretrial motions at the second trial, the new judge clearly indicated who was in charge – and it wasn’t the defense lawyers. The defense had hardly been bashful in talking to the press during the first trial and occasionally getting quoted accurately, but the new judge quickly gagged all counsel during the entirety of the trial.

The D.A. had made only one initial pre-trial motion – a motion to recuse me a because of a claimed “conflict of interest” serving as individual defense counsel to Mabanag, and also being counsel to the Oakland Police Officers’ Association (OPOA) as an organization. Thankfully, and appropriately, the D.A.’s lone motion was denied. Although we were initially encouraged by that ruling, we were quickly brought back to the reality of what would be our lives for the next nine months, when the judge heard my motion to dismiss the case due to prosecutorial and police misconduct due to the fabrication of the “draft” Internal Affairs report. During that ruling, the judge offered his own reasons from the bench as to why Sgt. Jon Madarang had included information in the September 7, 2000 “draft” which had not occurred until a week later, attributing some type of brilliant clairvoyance to Madarang. During the same argument, the judge questioned our integrity and credibility. We had challenged the first judge assigned to us based upon “intelligence” suggesting that we may not receive a fair trial. Countless times during the second trial, we kicked ourselves for that decision. While I am happy that we are not in a position of appealing convictions, I can say with a great deal of confidence and certainty that, had there been convictions in the second trial, they would have been overturned on appeal.

During pretrial motions, we spent approximately two or three weeks going through mounds and mounds of police reports resulting from the arrest of the alleged “victims” in this case. We sought to tell the jury about arrests of those victims for conduct involving “moral turpitude,” but which did not necessarily result in felony convictions (which are always admissible to impeach under the Evidence Code). After discussing the many, many arrests suffered by our claimed “victims”, the judge initially allowed us to introduce a number of acts and arrests demonstrating moral turpitude. After those motions were argued and decided, the judge asked counsel for a time estimate for the trial. Angered by some inconsistent estimates by defense counsel and Bill Rapoport’s unwillingness to provide any estimate at all, the judge rescinded his prior ruling, refusing our request to introduce any evidence concerning conduct and previous arrests of the victims involving moral turpitude. He also stated that we would be in trial five days a week, instead of four as we had during the first trial.

The three “key” witnesses in this case were Keith Batt, Steve Hewison and Madarang. In the first trial, Batt had been cross-examined by the defense for 6 days, Hewison for 5 days and Madarang for 4 ½ days. We now had a wealth of new and additional lies by these witnesses to expose on cross. Nevertheless, the judge in the second trial limited cross-examination of each to three days.

Early in the trial, one of the jurors, who was very clearly pro-prosecution, received a traffic citation from an Oakland police sergeant who the defense intended to call as a witness. While conversing angrily with the sergeant, she stated that she wanted to join the Oakland Police Department (OPD) to “right the wrongs of the past.” She then said that she had “friends” who would take care of the ticket. She alerted the judge about the issuance of the ticket and her objection to receiving it. She essentially asked the judge if he could assist her and he said no. Given her anger over the issuance of the citation (coupled with some of her answers on her jury questionnaire which indicated hostility against the police) we asked that she be dismissed. Denied.

The judge recessed the jury the morning the juror was supposed to go to court for her ticket. But our follow-up (on line) in Alameda County indicated that the juror made no appearance that day. Further follow-up with the court disclosed that there was no ticket to be found. Contacts with the sergeant and his superiors in the administrative section disclosed that no one seemed to know what happened to the ticket. We were told this was an aberration and that tickets never disappeared like this one had. As we got ready to put the sergeant on the stand, we renewed the issue of the ticket and its apparent “disappearance” with the judge. We asked the judge to intervene and make inquiry with the juror as to what happened. We asked the judge to consider dismissing the juror because of her anger at the sergeant who was going to be our witness. Denied. Instead, there was a suggestion by the D.A. that the defense had engaged in jury tampering, and we were asked by the D.A. and encouraged by the judge to make no further inquiries into how this particular juror’s ticket had disappeared. The judge explained that there is some great bureaucratic morass in the clerk’s office at traffic court and it must have just been lost in the shuffle.

Our request to tell the jury about Project SANE and the police chief and mayor’s “zero tolerance” Crime Prevention Program was denied. We were not permitted to discuss Oakland politics, or the crime problems in Oakland which led to the initiation of Project SANE, the chief’s pledge to reduce crime 20% during his first year in office, and why the defendants and many other officers were directed and encouraged to “hit the corners.”

During the second trial, the D.A. called as a witness Dave Hollister, who prosecuted the defendants in the first trial. Following his testimony and that of Madarang, Ed Fishman had a discussion with former Police Chief Richard Word (now at Vacaville P.D.) and learned that Word was prepared to give testimony which would dramatically impeach Hollister and Madarang. When we announced that we intended to call the former chief, the judge demanded that we provide a “detailed” offer of proof concerning what the chief would testify to. When Fishman described the Chief’s testimony (which we anticipated would last no more than one-half hour), the judge refused to allow us to call the Chief, claiming that his testimony would consume too much time and confuse the jury.

After the case had been submitted to the jury for its deliberations and verdicts, a juror who was clearly a pro-defense juror, was accused of making a statement in the deliberation room concerning information which had not been presented to the jury. Specifically, the juror was accused of telling other jurors that one of the alleged victims named Matthew Watson had been killed in a drug rip off shortly after the first trial, which was why he was “unavailable.” During the first trial, Siapno had testified that after arresting Watson, he told him about the dangers of selling drugs, and that he would likely be hurt or killed if he continued. The prosecution, in opening argument, had told the jury he was unavailable for “scheduling reasons.” Our motion made after the prosecution’s opening to tell the jury the truth about the “unavailable victim” was denied.

The judge brought the pro-defense juror down to chambers and questioned him. The juror indicated that he had learned this information from the same pro-prosecution juror who had received the traffic citation, discussed above. The juror added that this same female juror had discussed this information in the presence of at least one other female juror, who he identified.

The judge excused the pro-defense juror for misconduct. We asked the judge to call the other “witness” juror to verify that the source of the information was the same pro-prosecution juror who had received the traffic ticket. Denied. The net result was that the defense lost probably its strongest juror for “misconduct” while perhaps the strongest prosecution juror, who it appeared had done the same thing, continued to remain for the remainder of the deliberations.

When I told the jury in closing argument that the criminal justice system is far from perfect, but that it is only as good as it is because of the right to a jury trial, I was thinking that our only possibility of getting a fair trial would be as a result of what the jury did.

So Why Were There No Convictions

Let me briefly tell you why, with all of the other things operating against us, there were no convictions.

 A. Careful Thought In The Selection Of A Jury 

First and foremost, we wanted out of Alameda County for both trials and made motions to change venue. My Motion to Change Venue because of the problems of politics which was made before the second trial is on PORAC/LDF’s web site. Both motions were denied, and we were stuck.

Realizing that we would have a jury full of police skeptics and critics, we made a decision to pick a jury to “hang.” We needed a few people who we thought would be fair-minded and sympathetic to the police and who would stick to their opinions once they were made. If we could get two or maybe three of those individuals, we didn’t care if the other nine or ten were at the other end of the philosophical or political spectrum. We figured the further apart the groups of jurors were in outlook, philosophy and belief, the more likely the hang. While we were not particularly shocked about all of the verdicts which the juries could not decide, we remained shocked that the first jury returned eight “not guilty” verdicts and the second jury, three.

B. The Defense Did Not “Overstate” Its Case

A common mistake of lawyers is that they tell juries in opening statements all of the things they are going to show and prove, and then they seldom produce. The defense avoided this pitfall, but the prosecution didn’t – and we reminded the jury about the prosecution’s overstatement of its case.

The defense had to deal with some bad facts and harmful evidence, but we did so systematically, succinctly, and without attracting undue attention to it or suggesting in our response that it worried us.

While the evidence against Hornung was weak and he really did not need to testify at either trial, both Mabanag and Siapno did. Although their styles as witnesses were different, both testified credibly. They admitted to mistakes, talked about how practices on the street were different in some instances from policy, and did not claim to be angels. Mabanag talked about taunting, teasing and spewing profanity at Batt for his various failures and shortcomings. After the first trial, some of the jurors had told us that they were offended by the way Mabanag treated Batt, but his honesty about that behavior caused them to believe that he was being truthful in discussing other issues. Neither Siapno nor Mabanag tried to be an “advocate” or to “sell” themselves to the jury.

C. The Prosecution’s “Key Witnesses” Were Exposed As Liars

And The Internal Affairs Investigation Report Was Exposed As Simply An Effort To Cover Up And Support The Lies Of Batt, Hewison And The Alleged Victims

Even though the defense in the second trial was precluded from telling the jury about the “victims” bad acts involving moral turpitude, many of the victims self-destructed when questioned by the D.A. The defense in most instances did not have to perform searing cross-examination of the “victims” to convince even the pro-conviction jurors that they needed to hang their conviction “hats” on something more credible or reliable.

The prosecution’s “case” against these guys really came down to whether the “whistle blowers” Batt and Hewison could offer credible support to the claims of the victims, and vice-versa. The “case” also depended on whether the internal investigation was fair, thorough and objective, or a cover-up for a pre-determined conclusion. The absence of convictions provides some indication of how the juries resolved those issues.

At various points during the trial and in closing argument, the D.A would remind the jury how Keith Batt was employed as a police officer at Pleasanton P.D., Steve Hewison continued to work as an officer at Oakland P.D., and Madarang had been essentially “promoted” to a position of running the recruiting unit at the OPD. The prosecution, of course, wanted the jury to believe that these guys could not be the liars the defense claimed they were, or they would not still be continuing to function in these various capacities. What the jury wasn’t told until I reminded them in my closing argument was that these three individuals had been inducted into the D.A.’s “Witness Protection Program.” Under this program, which we established amply at both trials, witnesses who said anything helpful to the D.A., whether truthful or not, were protected and coddled, while witnesses who said things favorable to the defense were complained about, investigated and in some instances fired.

The following is a summary of what “happened” to these “key” prosecution witnesses. Although the detail of their impeachment and exposure as liars cannot occur in this article, this is not the final chapter of the book on their testimony nor the final time they will be reminded in writing (in a more detailed fashion) of what they said and did to try to get these guys convicted.

Keith Batt

Batt embellished and changed his Internal Affairs interview statement repeatedly to suit the prosecution’s theories or case against the defendants. He was caught time after time changing and embellishing his initial I.A. statement. Just a few examples follow:

  1. A suspect he described to Madarang during his I.A. interview as being “obviously drunk,” and who he referred to as “the drunk, ” was not drunk at all when Batt testified at trial, where Batt then claimed the suspect was falsely arrested by Mabanag for being drunk.
  2. Batt told Madarang he stood and watched as Officer Vallimont, using a felt tip pen, wrote the word “Riders” on a softball later signed by the defendants and other officers. After the D.A.’s handwriting expert said there was no proof that Vallimont wrote those words, Batt told the jury he had really meant to say that he didn’t see Vallimont “pen” the words “Riders”, but assumed he did.
  3. Batt testified under oath at a preliminary hearing that he ran a corpus check on “victim” Delphine Allen at a specific location. He then completely changed his testimony of the location at trial, claiming he must have been “mistaken”, after hearing my opening statement and realizing the “new” location worked better with the prosecution’s theory.
  4. Batt told Madarang during his I.A. interview that Frank had said to him, “so you don’t like the way we write reports?” But by the time he testified, Frank’s question was “is it the use of force or lying in reports you don’t like?”

Batt destroyed numerous reports which he had written while working under the direction of Mabanag Mabanag. The reports he destroyed would have exonerated Mabanag from Batt’s charges of writing false police reports. Batt admitted to destruction of reports but claimed to be unable to remember when in a span of just 30 hours he had done so. He didn’t know how many reports he destroyed, but denied they were “exculpatory” to Mabanag.

Batt was the only witness wearing a uniform who stated that writing false police reports didn’t bother him and that he “didn’t lose sleep” about putting allegedly innocent people in jail based upon false reports.

Batt lied to Madarang when interviewed on July 5th about the reports he had been retaining while working with Mabanag (Madarang later covered up Batt’s lies in his Internal Affairs report). Batt later changed his testimony again in an effort to conceal his destruction of many reports.

Batt lied to Madarang and testified falsely about telephone conversations he had with Steve Hewison to get their false claims against Mabanag straight. Batt claimed under oath that he did not have a single telephone conversation with Hewison. When the telephone records were produced pursuant an order of the court, Batt had talked to Hewison 10 times between the date of his initial complaint to Internal Affairs on July 5th and Hewison’s initial interview on August 2nd.

Batt prepared a declaration under oath misrepresenting his telephone number so as to prevent a special master appointed by the first trial judge from discovering his telephone calls to Hewison. Instead of giving the telephone number of the location where he was living while working with Mabanag, he gave the suffix of a telephone number he had while going to college in Sacramento four years earlier. He said he was “mistaken.”

Although he had a vivid recollection of claimed misconduct of others, he could not recall the substance of a single telephone call he had with Hewison when confronted with the results of the telephone analysis.

Here is an excerpt of his testimony at the second trial:

Q: You have testified under oath that writing false reports didn’t bother you, haven’t you?
A: Yes.

Q: You have never been punished for that, have you?
A: No.

After Batt gave that testimony, I asked Alameda County Senior Deputy District Attorney Norbert Chu whether it would bother him to hear that a police officer testified that writing false reports didn’t bother him. Mr. Chu stated that if an officer said that, he would not want to charge his cases. (In the first trial, Chief Word testified he would not hire an officer who said that). Mr. Chu stated that the officer’s credibility would “go down the tube in my book.” Apparently, it never did, and never has with Mr. Chu’s boss.

Steve Hewison

After having numerous telephone conversations with Batt (and an unknown number of face-to-face meetings), Hewison belatedly claimed that when he worked with Mabanag on July 3, 2000, Mabanag directed him to write a false police report. Hewison claimed that he had “forgotten” about Mabanag forcing him to write the false report immediately afterward and did not recall it again for two weeks until he got a subpoena to testify (and after talking to Batt).

Hewison denied writing a “draft” report on the July 3rd incident, stating he had seen a suspect throw 17 rocks of cocaine. He was impeached by another officer who watched Hewison write the draft report.

Hewison later told his partner and friend that he had written a police report containing inaccuracies but did not say Mabanag directed him to do it.

Although he initially told his own field training officer and internal affairs Sergeant John Madarang that he had written only a single false report at the direction of Mabanag, and specifically denied writing any other false reports when asked, five weeks later, after being “sweated” by District Attorney (D.A.) Inspector Conner (to use Conner’s own terminology). Hewison claimed he “suddenly” remembered that he had written a second false report at the direction of Francisco Vasquez, the fourth officer charged in the Rider’s case. At trial, he was impeached concerning the preparation of the alleged false report with Vasquez when we produced another document in Hewison’s own handwriting which he had forgotten about, and which refuted his sworn testimony.

Hewison claimed to have received only one telephone call from Keith Batt. He stated under oath that he did not even know whether Batt had a cell phone, let alone it’s number. After the defense got phone records of calls between Batt and Hewison, we determined that Hewison called Batt’s cell phone on a number of occasions.

When confronted with the record of 10 separate telephone calls with Batt, Hewison claimed to have no recollection whatsoever of the content of any of those discussions.

Hewison admitted under oath that he had lied to Madarang in the Internal Affairs investigation concerning his conversations with Hornung.

Hewison admitted that he was willing to lie and let a man he claimed to have falsely arrested stay in jail. “Call it foolish” he said.

During Attorney Ed Fishman’s cross-examination at the first trial, Hewison suddenly remembered he had written a “note” describing a heated argument with Hornung three years earlier. He said he had forgotten about it until that very moment. He and Conner went to his locker and found the note in 10 minutes, then gave conflicting accounts of where and how the note was found. Despite being questioned by Madarang, the D.A.’s office and Fishman at the preliminary hearing about the heated conversation, Hewison had never claimed before 2003 that he wrote a note describing it.

John Madarang

Although admitting this was the “biggest” and “most important” investigation he had done while he was assigned to Internal Affairs (I.A.), Madarang insisted he did not keep a chronological activity log of activities concerning the investigation because “we were getting away from it in Internal Affairs at the time.” He was impeached by his Internal Affairs lieutenant and another Internal Affairs sergeant who said that wasn’t true. The chronological activity log, if produced, would have disclosed dates of meetings involving Madarang, the police chief, the city council, city attorney and city manager, as well as meetings with the D.A. prior to filing of criminal charges against the defendants.

Madarang conducted over 60 witness interviews but said he did not take even one page of handwritten notes during any interview. Numerous witnesses testified that they sat and watched Madarang take handwritten notes of their interviews. The defense located one handwritten piece of paper which Madarang then described as a “note” of his interview of Keith Batt on July 5th before he turned on the tape. The note describing Batt’s account of an incident was inconsistent with Batt’s account of the same incident during the taped interview.

When confronted on cross-examination with a taped interview of an alleged victim which appeared to be surreptitious, Madarang initially stated he was trying to capture the interview without the knowledge of the individual. After lunch and talking to the D.A., he claimed he had never tried to secretly record a witness interview and had no idea how this recording could have occurred.

According to one of the alleged victims, Madarang explained the allegations made against the officers by Batt to the victim before turning on the tape and asking the victim to describe his allegations against the officers. Another “victim” described Sgt. Grier engaging in the same practice.

Prior to Madarang testifying in February 2003, D.A. Hollister produced a 45-page “draft” Internal Affairs report, which Madarang claimed had originally been completed on September 7, 2000 and turned over to the D.A. the next day. The defense demonstrated in five separate ways that the “draft” was really a (sloppy) editing and ante-dating of the final I.A. report which had been completed between September 22 and 25, 2000. It was given to the defense just before Madarang testified, and was intended to eviscerate one of Hornung’s main defenses. Had the editing of the final report been done more carefully, they might have pulled it off.

When the defense made a motion to obtain the hard drive of Madarang’s computer to establish that the September 7th “draft” report was a fraud, we received in response a declaration from I.A. Lt. Rachal stating Madarang’s computer might not still be in the unit, and that one of the computers had “crashed”, which “might” be Madarang’s. Madarang completed a declaration under penalty of perjury stating he deleted the “draft” when he did the final report, and describing the manner in which the final I.A. report was prepared and placed on a floppy disc, which was, in turn, placed in his investigative file. Subsequent analysis of the floppy disc by expert witnesses in the D.A.’s office and for the defense demonstrated that statements made by Madarang in his declaration under penalty of perjury was false. When I questioned him about the false statements, he said someone else had typed them, and he just signed them.

D. The Defense Demonstrated That Serious Allegations Made By Two Supposedly “Independent Victims” Were Not Independent At All

The two most serious incidents at this trial involved similar sounding allegations made by two separate and allegedly “independent” victims. Specifically, a juvenile named Matthew Watson claimed that on June 13, 2000, Siapno and Vasquez had arrested him and had taken him to a remote location where they beat him while he was handcuffed, before taking him to the Youth Services Division. Watson’s mother made a complaint to Internal Affairs that police had used “excessive force” (but no further description) on her son on June 30th, more than two weeks following his arrest, but just three days after Vasquez and Siapno arrested an individual named Delphine Allen.

On July 7, 2000, Allen claimed that after Vasquez, Siapno and Batt had arrested him on June 27th near his home, Vasquez and Siapno took him to a remote location and beat him while he was handcuffed before taking him to jail. Madarang claimed that he had no knowledge of the Matthew Watson complaint or incident when he investigated Delphine Allen’s allegations. His testimony was impeached by Internal Affairs Sergeant Maverick Grier, who stated that he told Madarang about the Watson complaint on July 7th, the date Grier interviewed Watson, and first learned that the “excessive force” was an alleged beating under the freeway. As an aside, we also proved that on the afternoon of July 7, 2000, Batt, Watson and Allen were all present in Internal Affairs and interviewed. But it was the defendants who were accused of conspiring.

Although the police department’s investigation and the D.A.’s ensuing follow-up investigation essentially treated the Watson allegation as one completely “independent” from the Allen similar-sounding allegation, the defense, through investigative efforts of Mike Schott, established that Watson was staying for extended periods of time at a location where a female named Danielle Keller was also staying with her sister. This same Danielle Keller had earlier surfaced in this case claiming to be an eye witness to the arrest of Allen when she was walking near his residence (and miles from hers) at 1:40 a.m., and on her way to unknown and undisclosed friend’s house.

The defense demonstrated that Keller was, in all likelihood, a manufactured witness because her account of what she allegedly witnessed in the Allen arrest was wildly inconsistent with details of that arrest and the officers who participated in it.

Although D.A. Inspector Conner (who was described by the prosecutor in closing argument as a “legend”) claimed that he had no knowledge of Keller’s friendship with both Watson and Allen, Keller testified that Conner had come to the house where she and Watson stayed, looking to talk to her about the Allen arrest. Conner claimed that, had the defense not linked Keller to both of these individuals, he would not have known it.

Lessons to be Learned from the Riders’ Case

Some kind of “good” needs to come from all of this ugliness. Following are some suggestions:

  1. Police chiefs, and not politicians, should run police departments and determine crime fighting strategies.
    Particularly in urban areas where there is a lot of violence, crime, and public outcry for “something to be done”, police chiefs need to have some kind of protection from the politicians who will say anything and do anything to look good to the constituents. Police chiefs need to be able to tell tough-talking politicians to mind their own business, which means the police chiefs need to be independent. That could occur either because police chiefs are well over retirement age and can tell the politicians to get lost, or the police chiefs need to negotiate employment contracts with their employer, which would include a decent enough severance package to provide them economic security if they cross paths with the politicians who want to run the department, and the chief gets fired.
  2. Crime fighting programs and strategies need to be specifically delineated in written operations plans.
    Officers should be wary of being encouraged to participate in aggressive crime fighting programs where written direction is sketchy or nonexistent. The “Riders” and many other officers were being told by deputy chiefs and others that they should not be afraid to “put hands on people”, and that “we’ll back your play.” Those verbal commitments and encouragements were quickly forgotten when heads needed to roll.
  3. “Zero tolerance” crime fighting programs contain peril for all. 
    Bill Bratten, the current L.A.P.D chief, told Mayor Brown and other police leaders in March 1999, not to adopt a “zero tolerance” crime fighting plan because of its potential to create “oppressiveness”, and because such a program deprives an officer of discretion. I think that was good advice. It’s only too bad the department’s “plan of action” nine months later mandated a “zero tolerance policy” towards street level drug dealers, “and those contemplating criminal activity” (whatever that means).
  4. Personnel-scarce departments should not take shortcuts to capture criminals.
    In defense of the Oakland PD management, there is simply not enough officers in Oakland to provide the necessary manpower for labor intensive “buy-bust” programs on a regular basis, or to do saturation patrols, or the like. In this case, department management was trying to find some way to deal with crime and violence with inadequate personnel resources and by using uniformed personnel to eradicate drug dealing, something more effectively done with undercover officers. The strategy was risky for a lot of reasons, but it really doesn’t make a whole lot of sense to have rookie police officers in their first week of training jumping out of undercover vans or semi-marked vehicles to engage in the inevitable foot chase of suspects who are often armed and always desperate to avoid arrest.
  5. Specialized crime fighting programs must be supported by specialized and intensive instruction and close supervision.
    One of the initial memos formulating Project SANE described patrol officers’ willingness and ability to detect people under the influence of drugs as “a lost art.” The reason Mabanag, Siapno, Hornung and Vasquez were often involved in these programs was simply because they understood the connection between drugs and violence, had taken the time to educate themselves on how to detect people under the influence, and were willing to engage in the type of police work which seemed to inevitably result in more Internal Affairs complaints, foot chases and fights. Admittedly, there were a number of other Oakland police officers doing this type of work, but very little attempts by management or supervision to increase the pool of officers both available and capable. Sgt. Hayter, their supervisor, was spread far too thin to be able to provide close or meaningful supervision, and usually provided supervision by crisis.
  6. Law enforcement officers must be scrupulous and accurate in testifying about arrests and gathering evidence – there is no need to try to make a food arrest a great one.
    As I stated earlier, officers who “overstate” their case often create more problems for themselves. Neither the “Riders” defendants nor many other Oakland officers who deal with the vulgarity and violence associated with drugs, can function as they are expected to without putting on a tough persona. That’s not always (or even seldom) pretty if officers are expected to approach suspected drug dealers with smiley faces and the docile demeanor of encountering a lost, senile senior citizen. Still, when it comes to testifying, officers should not try to overstate the actions and conduct of suspects, or understate the nature of their approach and contact of the suspects in order to control the situation. Similarly, after-the-fact changes in accounts of the initial contact, or the subsequent arrest and/or seizure of evidence raises suspicion and skepticism of the officer’s credibility.

One of the great failures of the prosecution in this case was a never-ending changing of testimony and embellishment by “key” witnesses Batt, Hewison and Madarang, apparently out of the belief that these changes made the “case” against the defendants stronger. It backfired. I recall two jurors telling me that they believed the defendants were “guilty as sin” when the second trial started, but that even though they “wanted” to convict the cops, they couldn’t bring themselves to do so because of the testimony of their uniformed accusers.

Sometimes the truth is embarrassing, unpleasant, or downright ugly. But it’s still the best course of action when an officer hits the stand.

Conclusion

Crime and violence are as prevalent in Oakland today as they were in 2000. Mayor Brown’s campaign commitment to make Oakland “safer than Walnut Creek” was simply political rhetoric. Police work still occurs, but it is probably of a different level and type. Whether or not that is a good thing is not the subject of this article. In this post-Riders’ era, officers must remember to be safe from the ever-present violence potential by stopping cars and people, and responding to calls. Equally important, officers have to be careful about the ever present dangers of being encouraged to be aggressive, kick-ass crime fighters in the interest of making someone above them look better than they really are.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.