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Richmond Officer Acquitted of Criminal Excessive Force Charges

Posted on Thursday, March 01, 2012 at 12:00PM
Posted by HARRY S. STERN

The Case and Arbitration

A Contra Costa County jury deliberated for a mere three hours before acquitting Richmond Police Officer Dedrick Riley of all criminal charges. The not-guilty verdicts on the two felony and two misdemeanor counts came in the wake of Arbitrator Fred Butler reversing Dedrick Riley’s termination and restoring all back pay and benefits last year after a lengthy arbitration. Dedrick Riley, a U.S. Army veteran, U.C. Davis biochemistry graduate and father of three, has been returned to duty.

The Incident

On March 7, 2009, Dedrick Riley’s sergeant assigned a trainee to ride with him. Although Officer Riley was not a Field Training Officer (FTO), the trainee’s FTO was not at work and the sergeant thought it would be a good opportunity for Officer Riley to gain experience. That request would affect Officer Riley’s and his family’s lives for the next three years.

As soon as they cleared lineup, Officer Riley told the recruit to drive to the intersection of South 3rd and Ohio Street. This section of Richmond is notorious for narcotics, prostitutes and violence. It is a rough section of a rough city.

Officer Riley immediately spotted a career criminal named Donald Stewart parked in a shadowy area. He told the recruit to stop the patrol car so that they could see what Stewart was doing. Officer Riley walked up to Stewart and started to ask him some basic questions. Stewart gave several unsatisfactory, misleading answers. Officer Riley noticed that Stewart was sweating even though it was a cool spring evening. Stewart seemed nervous and jittery.

Officer Riley asked Stewart to step out of the car so that he could continue the investigation. As Stewart stepped out, Officer Riley and the recruit saw that Stewart had been sitting on several chunks of crack cocaine. Officer Riley quickly handcuffed Stewart. Despite being restrained, Stewart stuck his right leg back into his car and began trying to crush the cocaine.

Officer Riley used a standard leg sweep to bring Stewart to the ground in order to stop him from destroying the evidence. However, Stewart was far from under control. Stewart began to loudly harangue Officer Riley and the recruit. The recruit attempted to hold Stewart on the ground while Officer Riley recovered the crack.

Unfortunately, the recruit was overmatched by the larger felon, who was likely high on a combination of crack, marijuana and alcohol. Stewart bucked the recruit off of him. Officer Riley quickly moved over to where the two were struggling. He grabbed Stewart, slapped him twice on the left side of his face as a distraction and was then able to corral Stewart. He placed Stewart in the back of the patrol car and continued to search for evidence.

The Claimed Cover-Up

Once en route to the jail, Stewart apologized and asked to be let go. Officer Riley told him that since he had used physical force, he had to continue with the arrest and document the incident.

At the Richmond Police station, Officer Riley realized that the amount of crack recovered was less than the threshold amount that the District Attorney’s (D.A.) Office was charging under their policy. Officer Riley decided to enlist Stewart as an informant in order to salvage some value out of the encounter. Officer Riley telephoned his sergeant twice asking permission to release Stewart pursuant to Penal Code section 849b.

In light of his sergeant’s instructions, Officer Riley had the recruit fully book Stewart, which included photographing him, rolling his fingerprints and obtaining all of his identifying information. Stewart had no visible injuries and denied being hurt. Officer Riley did not mention the fact that he had slapped Stewart to his sergeant when they spoke on the telephone.

However, less than 10 minutes after the last telephone conversation with his sergeant Officer Riley drove to the scene of another call where he knew his sergeant was and spoke to him in person.

Officer Riley told his sergeant that he had completed a use-of-force form because he’d had to “slap around” the suspect. The sergeant became concerned about the possibility that Officer Riley had made a “shady deal” with Stewart so as to conceal the use of force. The sergeant notified the watch commander, who reviewed Officer Riley’s use-of-force report and the crime report. The watch commander attempted to contact Stewart, who had gone to a party after being released.

The next evening, Stewart came to the station with his wife and told the watch commander that Officer Riley had slapped him once and punched him in the face several times because he had “mouthed off” to him. A crime scene investigator took photographs of Stewart. These photographs did not reveal any facial injuries. The watch commander notified Internal Affairs investigators, who immediately descended upon the station.

Internal Affairs investigators, Stewart’s statement in hand, summoned the recruit to the station at 4 a.m. The investigators spoke to the recruit off tape for 10 minutes. During this conversation, they told him that he could be in trouble and reminded him that he was on probation. Internal Affairs interviewed the recruit as a witness only.

The recruit’s statement largely mirrored Stewart’s account of what had taken place.

Termination and Criminal Charges

The backdrop for this case is that Officer Riley had been fired once before and successfully took his case to arbitration, where an arbitrator found that there was no cause for the termination. Apparently, this finding did not sit well with the Department’s administration.

The Department brought in the District Attorney’s Office to conduct a parallel criminal investigation, in all likelihood to pressure Officer Riley so that he would not choose to repeat what they deemed an embarrassing loss at arbitration.

Not surprisingly, the Department fired Officer Riley, and the then-district attorney (there has since been a newly elected top prosecutor) filed felony charges against Officer Riley, including assault under color of authority, filing a false police report and simple battery (at trial the D.A. requested that an additional misdemeanor assault charge be added).

We lobbied the former D.A. to allow us to arbitrate the case first, the premise being that if the termination was upheld under the lower preponderance of evidence standard then the prosecution would be satisfied to have Officer Riley out of law enforcement; if Riley prevailed, I told the D.A. that the arbitration decision would serve as collateral estoppel against the criminal charges.

Arbitration

Ordinarily, arbitrations are an expedited affair. However, in Officer Riley’s case the City dragged its feet for over a year. In general, opposing counsel delayed and prolonged the hearing based on a seemingly never-ending series of excuses. Once the parties selected Arbitrator Fred Butler, the City switched attorneys, conducted protracted direct examinations of witnesses and never seemed to be available to conclude the case.

After reviewing all of the evidence, including written closing briefs, Arbitrator Fred Butler concluded that there was no cause to terminate Dedrick Riley and awarded him full back pay and benefits, as well as reinstated him.

Nevertheless, the Department held Officer Riley out on paid administrative leave pending the outcome of the criminal case.

The Trial

Given the procedural posture of the case, I elected to waive the preliminary hearing. Frankly, in my opinion the previous D.A. had been sold a bill of goods by the police administration in terms of the facts of the case and Officer Riley’s background. Accordingly, the D.A.’s Office continued with the prosecution.

As an initial salvo, we filed a motion to have the case dismissed based on the collateral estoppel effect of the arbitration decision pursuant to a case called People v. Sims. The Court did not grant our motion, ruling that the Police Department and district attorney were not in privity (i.e., closely aligned) to a sufficient degree to form the basis for a dismissal. The Court did find that all of the other necessary prongs of a collateral estoppel defense were present. I think that this issue is one that may be worth revisiting in another case, since in other areas the police and district attorney are deemed to be part of the same “prosecution team.”

We began trial on January 3, 2012. We extensively litigated a number of pre-trial in limine motions that included the prosecution’s attempt to present the jury with a number of prior alleged “bad acts” by Officer Riley. Generally, such evidence is inadmissible unless it falls within one of the statutory exceptions set forth in Evidence Code Section 1101(b).

The judge eventually allowed evidence of one prior incident based on the prosecution’s representation that the act tended to show Officer Riley’s consciousness of guilt. The prior incident involved handcuffing a traffic violator and then supposedly slamming his head against the roof of his car and not notifying a supervisor. The prosecution’s theory was that Officer Riley had learned that he could get in trouble for using force and then failing to report it and, thus, concocted the plan to enlist Stewart as an informant and release him to cover his tracks.

The admission of this evidence posed a challenge because we were essentially trying another case with additional witnesses and evidence with little time to prepare.

Jury selection lasted for approximately two days. I think it is fair to say that we were able to choose jurors who were free from bias against the police and who had an appreciation for the difficulties of police work.

The stage was set during opening statements when both sides laid out their cases. The prosecution averred that Officer Riley had lost his temper and beaten the handcuffed Stewart when he had been verbally disrespectful. The D.A. characterized the recruit as a hero for testifying against a colleague. I explained that the evidence would show that Officer Riley used reasonable force to control the crack-smoking career criminal Stewart.

The prosecution called a total of eight witnesses in their case-in-chief, including three witnesses that had to do with the prior alleged bad act. They also called two rebuttal witnesses in an attempt to discredit one of our witnesses. The alleged victim, Donald Stewart, was less than a stellar witness, to say the least. It is my impression that the jurors did not give his testimony much, if any, credence. He had extreme difficulty remembering facts and offered a new version of what had taken place. We demonstrated via the photographic and medical evidence that Stewart did not have any injuries that were consistent with having been punched as claimed.

The witnesses from the supposed prior bad act were similarly unconvincing, and I noticed several jurors shaking their heads in disbelief as they testified.

We called a total of five witnesses, including use-of-force expert Sean McCann, a Professor of Criminal Justice and an Academy Instructor, who explained to the jury that distraction blows are a reasonable use of force and that prisoners in handcuffs can present a variety of dangers to officers.

Our star witness was a 64-year-old gentleman who lives in the neighborhood where the incident took place and who witnessed the entire incident. He had initially been reluctant to cooperate because he feared retaliation from drug dealers and pimps in the area. He gave powerful testimony that largely corroborated Officer Riley’s account of what had taken place.

After somewhat lengthy closing arguments, the jury returned not-guilty verdicts after only about three hours of deliberation. Officer Riley was ecstatic and wept with joy and relief as he hugged his wife, who was present, along with other family members, for the entire three-week trial.

Conclusion

There is certainly no more gratifying feeling than being able to have a police client exonerated by a jury. Our success at trial is due to our firm’s extensive experience in handling police cases and our team approach. In this case, I worked with RLS Investigator Robert McFarlane. Bob is a former Oakland P.D. Officer who also served as a part of the Air Force’s security police. Bob was instrumental in locating and interviewing witnesses and assembling and organizing evidence. Bob’s street experience in Oakland allowed him to build a rapport with the reluctant percipient witness from the neighborhood and secure his testimony. Bob was also able to pick apart the prior bad act case by developing background information about the witnesses, analyzing the scenes and locating additional witnesses. During trial, Bob wrangled witnesses, kept track of evidence, took extensive notes and otherwise served as another set of eyes and ears.

The other member of our team for this case was RLS appellate attorney Dylan Shaffer. Dylan has 20 years of experience handling some of the most high-profile and complex cases in California history. He worked with us on the Mehserle case and recently with my partner Mike Rains on a case against a deputy sheriff whose murder charges were dismissed by a superior court judge after the preliminary hearing. Dylan assisted me with drafting all of the pre-trial motions as well as the jury instructions and a number of other legal issues that arose during the trial.

I also called on our experienced group of trial lawyers, including a number of former prosecutors to use as a sounding board for various strategies.

I had the honor of speaking to several jurors after the verdict. Several hugged Dedrick. One juror explained to me that they all understood what a tough job being a cop in Richmond is and that Dedrick deserved a medal, not a criminal conviction. Dedrick Riley is extremely grateful for the support of the Legal Defense Fund and of his colleagues and family.

ABOUT THE AUTHOR: Harry S. Stern is the firm’s Managing Principal. His practice is focused on civil litigation and criminal defense. He has successfully defended peace officers in a number of high-profile trials.

 

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