Rains Lucia Stern St. Phalle & Silver, PC
Most cops don’t figure they’ll ever need a lawyer, let alone be charged criminally. Work hard, don’t steal, don’t cheat, follow the rules: What could possibly go wrong? Just ask Huntington Park Police Officer Marissa Larios. Two and a half years ago, life was going well for her. She had been a cop at the Huntington Park Police Department for about eight years and was being pegged for detective. She was well-liked, a hard worker and a good street cop, and her career was blossoming.
That all changed in May 2015. Larios and a group of her co-workers, along with a few other officers from Southgate Police Department, participated in a week-long boot camp program for wayward youth, held at a National Guard base in San Luis Obispo. Larios had participated in the program each summer for three years and found it a nice break from the street. The kids who participated were 13- and 14-year-old boys and girls from Huntington Park and South Gate, two gang-infested neighborhoods in the L.A. area. The parents who enrolled their kids in the program were at the end of their proverbial ropes, worried about the direction in which their teenagers were headed and short on ideas of how to change the trajectory of their kids’ lives.
The format of the program was pretty much what most people think of when they hear “boot camp.” The “recruits” arrive full of teenage angst and attitude, sporting a general disdain for authority. The program is specifically geared to disabuse them of that attitude and approach to life. The boys’ heads are shaved, the girls’ hair is wrapped into buns and all of them get dressed in uniforms. The kids’ days are full of yelling, pushups, sit-ups, jumping jacks, marching, “Yes, sir”s and “No, ma’am”s. As the week progresses, the kids start to look and sound more respectful, and they usually start to feel better about themselves, too. Recruits participate in group problem-solving exercises and attend classes that encourage them to aim higher. By the end of the week, they are triumphantly hiking to the top of a nearby mountain and posing for selfies with their newfound friends.
The boot camp had successfully helped young teens for over 15 years. However, at the conclusion of the May 2015 session, some of the boys complained to their parents that the drill instructors had been too rough, yelled too loudly, cursed and even assaulted them. There were rumors that the cops were stomping on kids’ fingers, locking them in dark closets and being physically abusive. The story went viral. The media seized on the case and disseminated their distorted version of events far and wide.
For Officer Larios, it was the beginning of a two-and-a-half-year nightmare. She was investigated for allegations of choking a 14-year-old and physically abusing another. Both allegations were false, but that was of no consequence. Larios would eventually be charged with one count of simple battery and two counts of child abuse. Her career was put on hold; her dreams crumbled. Fortunately for Larios, she was put in contact with Rains Lucia Stern St. Phalle & Silver partner Michael D. Schwartz to defend her against these specious charges.
Prosecutors presented a video of the boot camp intake process that they claimed would prove the camp was abusive. In fact, what the video showed was a typical first day of boot camp that included calisthenics and loud orders; our client was barely seen in the footage. After looking at all of the discovery and meeting with Larios, we were convinced she was completely innocent.
The first order of business was to file a motion to have her case proceed separately from two other officers who had been charged. The evidence against Larios was substantially different from that of these co-defendants. Such severance motions are rarely granted. However, RLSSS attorney Nicole Pifari wrote a persuasive motion, highlighting the due process violation that would occur if Larios were not allowed to proceed without the other defendants. In what would be the first major turning point of the case, Pifari’s motion was successful.
With the case now severed, the defense team began rolling up their sleeves with more pretrial motions that attacked the misleading and completely irrelevant “theories” offered by the prosecution. Nicole Pifari again led the charge on the motion work. She artfully demonstrated to the judge the injustice of the prosecution’s positions. There were a total of 14 pretrial motions, and whether we were arguing to bring a piece of evidence in or to keep something out, each and every significant pretrial motion was decided in Larios’ favor — much to the frustration of the District Attorney’s Office.
On November 27, 2017, the day finally arrived to pick a jury, which was no easy task with charges involving child abuse. “Innocent until proven guilty” is a phrase that sounds nice, until you look into the eyes of a jury pool who have just heard the words “The defendant is accused of child abuse.” During voir dire, however, RLSSS partner and senior trial attorney Michael Schwartz “planted seeds” of the defense theory of the case, asking prospective jurors if any of them had experience with people, including and especially kids, who not only exaggerated or embellished, but even believed that something had happened to them even when their perceptions were, objectively, unreasonable or untrue. Schwartz also hammered home that the prosecution bore a heavy burden of proof, and the jurors should not be smitten with the first impressions created by the prosecution’s case, but should wait for all the evidence to be presented before reaching a conclusion. Many jurors seemed receptive to these concepts, and the defense team moved forward with cautious optimism.
The prosecution’s star witnesses were the two teenagers who the prosecution claimed had been abused by Larios. At the time of the incident, both girls were 14 years old, having troubles at home and enrolled by their parents in the program against their will.
During his opening statement, the prosecutor promised the jury that the first witness would explain how, shockingly, Larios had choked her with a C-clamp chokehold for 20 seconds. So one can imagine the jury’s surprise when, moments later, the girl took the stand and painted a completely different picture.
When it was his turn to examine the “victim,” Schwartz stood up and casually picked up where the prosecution had left off. Cross-examining juvenile witnesses is tricky business, especially when the witnesses are girls who are alleged to have been victims of abuse. If the lawyer comes on too strong, he looks callous. If the lawyer is not direct enough, the witness gets to paint her own picture and twist reality, unchallenged. During a truly masterful cross-examination, Schwartz threaded the needle perfectly and brought out the truth.
In response to his questions, the first witness described the alleged “C-clamp chokehold” as more of a hand placed on her upper chest/collarbone area, for no more than six seconds, in a way that didn’t hurt, didn’t leave a mark and didn’t impede her breathing. She explained that when the officer placed a hand on her upper chest, she had been in the middle of an angry panic attack, acting defiant, crying so hard she was having trouble breathing (we call that “hyperventilating”) and yelling. The girl admitted on the stand that after Larios placed a hand on her, she actually calmed down, agreed to participate and never had another problem at camp.
The prosecution’s second witness was even more favorable to the defense. During opening, the prosecutor had told the jury they would hear from this girl about how she was forced by Larios to sleep in handcuffs overnight in a wet sleeping bag. Instead, the witness testified on direct examination about how she had been placed in handcuffs after violently assaulting staff and threatening to harm the other kids. She explained that she knew as soon as she agreed not to hurt anybody, the handcuffs would come off, and that was exactly what happened.
This girl did not look, act or sound like a victim, because she did not want to be a victim and did not consider herself one. Again, during cross-examination by Schwartz, the whole picture was fleshed out. The “second victim” testified about how before the camp, she was skipping school, physically attacking her own mother and running away from home. After attending the camp, she stopped running away from home, grew very close to her mother and is currently earning college credits in her advanced high school classes. At the close of his cross-examination, Schwartz reiterated a question earlier posed by the prosecutor, with the same response from the witness: “What do you want to be when you grow up?” The now-almost-17-year-old smiled and answered firmly, “I want to be a law enforcement officer. Because being at the boot camp made me realize there are good cops out there, and I want to help my community.”
Even with the favorable way the evidence seemed to come out during trial, the verdict was anything but certain. After all, Larios was accused of abusing children. Furthermore, the judge made two rulings about jury instructions that precluded the defense from presenting a “reasonable use of force” instruction under Graham v. Connor or a reasonable parental discipline instruction. The judge’s rulings opened the door for an argument that any offensive touching should lead to a conviction. Because the first alleged victim had testified that when our client’s hand was on her upper chest/collarbone area, she was in such “shock” that her “body had gone numb,” the jury could have easily concluded that the touching was offensive and unreasonable, convicting our client.
In his closing argument, Schwartz immediately went into attack mode, arguing to the jury that what was offensive was the way the prosecution presented its case, not Larios’ hand on the upper chest of a troubled, wayward 14-year-old whose screaming, movements and hyperventilating were more like a violent temper tantrum than an anxiety attack. Not only was Larios’ hand on this girl’s chest not offensive, it was absolutely necessary to stop the violent tantrum and bring the girl back to reality — which, by the girl’s own admission, it did.
The jury agreed, and on December 12, 2017, Larios’ nightmare came to an end with a full acquittal of all charges. One juror later told us that after closing arguments, the decision wasn’t even close. The same juror told us that the jury pretty much reached a verdict in about 40 minutes of deliberation, but decided to “sleep on it” and come back the next morning, to be sure. The official verdict was reached after less than an hour and a half of total deliberation.
Although the jury’s verdict might have been swift, it was really the culmination of two and a half years of preparation, pretrial motions and some fine trial work. A relieved and exuberant Officer Marissa Larios thanked G-d, the entire team at RLS for working so hard and diligently on her defense, her chief and department for supporting her throughout the entire process, and PORAC LDF for giving her attorneys the ability and resources it took to make this an easy decision for the jury.
About the Authors
Michael D. Schwartz is a partner and senior trial attorney in the Legal Defense practice group at Rains Lucia Stern St. Phalle & Silver, PC. He has successfully defended peace officers in some of California’s highest-profile criminal cases. Nicole Pifari, a former police officer, is a member of the Legal Defense practice group who handles criminal and administrative cases.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.