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Arbitrator Overturns Termination After Judge Dismisses Criminal Charges

Posted on Thursday, October 01, 2015 at 12:00AM

HARRY S. STERN
Managing Principal Attorney
Rains Lucia Stern, PC

Arbitrator Robin Matt has overturned the termination of a Concord officer and ordered full back pay. This decision comes after a Superior Court judge dismissed felony criminal charges on the same allegations.
Nobody is in favor of domestic violence — certainly not the women and men who have made a career of protecting true victims and bringing actual criminals to justice. But here’s where things get complicated: The enormous weight of current anti-police sentiment often crushes objectivity and due process. When the press and politicians talk about a code of silence or preferential treatment, I shake my head. In my experience, peace officers are much more likely to be charged with crimes when it is arguably a close call than are Jane and John Q. Citizen.
Such was the case with a member of the Concord Police Association. This young man has suffered enough indignity, so for the purposes of this article, I will call him Officer Doe.
Doe left a lucrative career as a mechanical engineer with an advanced degree working in the defense industry to follow what he believed was his true calling: protecting “the good people” from “the bad people.”

The Incident
On February 16, 2012, Officer Doe found himself on the wrong side of that equation when he was arrested in the aftermath of an argument with his girlfriend, whom we will call “Anne.” Thus began a three-year odyssey through the legal system.
Officer Doe and his girlfriend had a disagreement that arose after a friend had played a prank on them following an evening out on the town. Anne felt that Officer Doe had unfairly blamed her for the practical joke. When they returned home, Anne was still upset and decided to move out. During the course of a protracted verbal argument, Doe accidentally pressed the speed-dial 9-1-1 button on the house cordless phone. When the local police arrived, they found that Anne had a large welt on her forehead. Interviewed separately, both Doe and Anne explained that she had slipped and fallen when she was storming around the house in an agitated state. In fact, the welt had mottling that was entirely consistent with the speckling on the tile floor.
The responding officers were put in a difficult position, and I do not question their handling of the case.

Court Dismisses Charges
Doe was arrested and charged with both felony domestic violence and felony false imprisonment. The case proceeded to a preliminary hearing. I carefully cross-examined the people’s witnesses and was able to elicit a full picture of what actually took place. At the conclusion of the hearing, the Superior Court judge (herself a former prosecutor and police academy instructor — hardly a jurist sympathetic to those committing domestic abuse) dismissed the charges in their entirety.
The court made the following findings, on the record:
1. The prosecution did not provide proof that Anne was held against her will in violation of Penal Code Section 236.
2. No facts supported the claims that Officer Doe caused the injuries to Anne.
3. The most obvious injury (the large welt on Anne’s forehead) was not caused by being struck by another person — in fact, the evidence showed that it was caused by a fall.
4. Anne used poor judgment.
5. Significantly, there was not sufficient evidence to support a violation of Penal Code Sections 273.5 or 236 as a felony, or even as a misdemeanor.

Department Ignores Court and Fires Officer
The Concord Police Department conducted its own internal administrative investigation, which is neither unusual nor improper. However, many departments would have taken note of such a scathing rebuke of the evidence by the presiding magistrate in the criminal case. Yet internal affairs relied almost exclusively on the work of the arresting agency. The only significant step internal affairs took was to interrogate Officer Doe. The interviewer asked a list of scripted questions. Some of the questions assumed answers and were based on multiple layers of misconstrued prior statements. The script of the interview reveals that the session was essentially intended to trap Doe and force him into explaining claimed inconsistent prior statements.
Not surprisingly, the inquiry determined that Doe had committed the same charges that had been dismissed in Superior Court and added additional administrative counts that encompassed the criminal allegations.
Tellingly, the Department admitted in its own disciplinary documents that it “didn’t know exactly what happened.” In place of concrete evidence, the Department constructed a series of speculative hypotheses to explain Anne’s injury and Officer Doe’s supposed culpability.
Officer Doe and I attended a pre-disciplinary Skelly hearing, during which I laid out the manifest flaws in the Department’s case. Rather than objectively assessing the points that we made, the Chief directed the internal affairs investigator to try to troubleshoot our presentation. The investigator later conceded that he only sought to discredit our presentation instead of confirming any of the evidence we presented.
In what certainly appeared to be a preordained outcome, the Chief upheld the termination recommendation and fired Officer Doe, despite his exemplary record.

Neutral Arbitrator Overrules Termination
Arbitrator Robin Matt presided over five days of a binding evidentiary hearing. I must say that the Department was represented at the hearing by very skilled and experienced counsel. At the conclusion of the evidence, the parties submitted written closing arguments.
Arbitrator Matt rendered an extremely thoughtful and authoritative 96-page decision, reinstating Officer Doe and awarding full back pay. In overturning the termination, Arbitrator Matt wrote that the Concord Police Department had “construct[ed] a narrative that ended up outrunning the available evidence.” Well said.
In keeping with his character, Officer Doe did not sit at home idly waiting for his case to resolve. Instead, he actually applied to and entered a top law school, where he is earning excellent grades. Officer Doe is tremendously thankful to his Association, in particular PA President Adam Hart, as well as the Legal Defense Fund. Rains Lucia Stern investigator Robert McFarlane, as always, provided invaluable assistance. 
 

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