Rains Lucia Stern St. Phalle & Silver, PC
Rains Lucia Stern St. Phalle & Silver, PC
As of September 16, 2015, Corporal Chad Jensen had been a cop in Pomona, California, for 18 years. Thus, he knew his job. He was working a shift at the Los Angeles County Fair, something he had done countless times. So he knew the fair. He knew the fair was ending and so was his shift. He knew he only had 15 minutes more to go. He also knew that fellow officers had requested backup to deal with an unruly crowd — they had arrested two men for being drunk in public and now some of the family members were becoming boisterous and belligerent. He knew the situation. He knew the scene, an area between a pizza booth and popcorn stand. Corporal Jensen knew one man in particular was going to be a problem because of his bad attitude and big frame.
It is what he didn’t know that would take him by surprise. Although Corporal Jensen could see that the troublemaker was large, muscular and had a beard, he didn’t know Chris Aguilar, the person ignoring commands, was trained in jiujitsu and boxing, had competed as a football player and could bench press 385 pounds. He didn’t know that this “man” was only 16 years old. Indeed, because of Aguilar’s size and his mouthy, antagonistic attitude, none of the officers on the scene imagined that Aguilar was 16.
But the most shocking of the heretofore unknowns was that the next 27 seconds would send Corporal Jensen reeling into a two-year nightmare. He would soon find himself the unhappy star of a viral video and the target of a federal grand jury. A short time later, he would spend six hours in federal custody, handcuffed and shackled to a 2-foot round stool waiting to be arraigned on three serious felony charges. Chad Jensen was soon staring down the barrel of a 50-year stint in federal prison, at the mercy of a judicial system being driven by the vicissitudes of public opinion.
This story should scare the hell out of you.
Jensen took Aguilar by the elbow to remove him from the fray and calm him down. Aguilar went a few steps willingly, then started to resist. This led to a scuffle. Jensen saw a fist narrowly miss his face and countered with two quick forearm strikes to Aguilar’s upper torso and chin. The scrape lasted just five seconds. Other than Aguilar’s bloody lip, neither of them was injured. Fellow officers, including Prince Hutchinson (who would become a co-defendant), rushed in to subdue Aguilar. Corporal Jensen disengaged and redirected his attention back to the crowd. Jensen and Hutchinson both documented their uses of force in a report, then went home. All in all, it was like a lot of calls they had been on in their careers, especially at the L.A. County Fair. It was not much different than a lot of calls that a lot of police officers go to, every day, in communities all over the country.
Here’s the good news. After two federal jury trials, the first of which ended in a hung jury, Corporal Jensen and Prince Hutchinson were acquitted of all charges. The bad news is that there is no quantifying the stress an experience such as this has on an officer and his family. However, fellow officers can glean lessons from this case:
First lesson: Reports matter.
Federal prosecutors used several issues to attack these fine officers. They all arose from perceived differences between what the officers remembered and wrote in their reports compared with what appeared to be depicted in two cellphone videos that later surfaced. The officers reported that Aguilar was ignoring commands to get back from the officers transporting the drunks, was detained by Corporal Jensen because he was “getting within arm’s reach” of those officers and that Aguilar swung a fist at Corporal Jensen’s face, prompting the use of force. All of these documented assertions in their reports would later be challenged in court based on those cellphone videos.
One of the videos was taken by Aguilar himself. It is only 13 seconds long and captures the moments before Corporal Jensen grabbed him by the elbow. Aguilar would later claim he was just walking along with his cousins, happy, humming and taking a cellphone video of his father (one of the arrested drunks) because he thought it would be funny to show to the rest of the family at Christmastime. Corporal Jensen can be heard on the dark and grainy video politely asking Aguilar to “wait here a minute.” Aguilar responds impudently, flippantly, “No, I’m leaving. I’m going to the front … Bye.” According to the officers’ reports, Aguilar was detained because he had ignored commands to keep back, was closing quickly on the arrestees and was getting within arm’s reach of escorting officers.
During the trials, the federal prosecutors acted as if the only action that night occurred during that 13-second video and the one that followed. It seemed beyond their comprehension that the commands to “keep back,” which several officers documented giving, likely occurred before the video was turned on. But above all else, they attacked the “arm’s reach” description that both officers wrote in their reports. Defense experts were able to determine, by examining the video, returning to the scene and finding the exact same distinctive cracks in the sidewalk, that the distance between Aguilar and the arrestees at the time of the physical contact was approximately 30 feet. Might an officer consider 30 feet to be “getting within arm’s reach” when the subject is closing the distance, within a loud, angry crowd, and has ignored officer commands to stay back? Police officers who have worked in dynamic and stressful situations will answer yes and cite the 21-foot rule as an example of how quickly an assailant can close seemingly large distances.
But the judge would not allow any of that information into evidence. The court would exclude all testimony about training on crowd control, action versus reaction, use of force and the 21-foot rule. Instead, jurors were simply told that “arm’s reach” is 2-3 feet, then repeatedly shown a video depicting Aguilar at a much greater distance away. The federal prosecutor pointed at the officers and accused them of lying to cover up their unlawful use of force.
Second lesson: It is very difficult to estimate time and distance.
When you must document a time or a distance in your written report, unless you are using a stopwatch or a measuring tape, protect yourself by making it clear that the number you are providing is an estimate. If you use a phrase (“getting within arm’s reach”), as our client did, make clear it is meant to be figurative, not literal. Don’t leave it to your attorneys to argue the point to a federal criminal jury.
Third lesson: Cellphone videos can lie.
At trial, the prosecutors focused on the officers’ persistent — and according to the government, untruthful — claim that Aguilar had thrown a punch. Both officers adamantly asserted they had seen Aguilar take a swing at Corporal Jensen’s face: they wrote it in their reports and repeated it in sworn testimony.
Since Aguilar was charged with resisting arrest, Hutchinson and Jensen were subpoenaed months later to testify in Aguilar’s juvenile hearing. During that hearing, the officers were confronted with the cellphone videos that appeared to contradict their accounts of the incident. Yet the officers insisted they had seen a punch that night. Both were subsequently charged by the federal government with obstructing justice by “lying” about that punch in their reports and during their testimony.
Spoiler alert: There was a punch thrown.
The viral video that captured Corporal Jensen’s use of force is easy to find on the internet. Watch it as many times as you please. However, if you watch it at normal speed, you won’t spot the swing. At normal playback speed, the video appears to show Corporal Jensen spinning Aguilar away from a fence, then delivering two hefty forearm strikes to Aguilar’s face. When the forearm blows are delivered, Aguilar’s hands are down at his sides. Where was that punch? The officers didn’t know, but they were certain about their memories (incidentally, other officers on scene that night also remembered seeing the punch).
When the prospect of federal criminal charges seemed a likelihood, Chad Jensen called RLS partner and senior trial attorney Michael Schwartz. In keeping with RLS’ philosophy, Michael assembled a team that included attorney Nicole Pifari as well as motion specialists, investigators and a video expert.
The first order of business was to dig into the video evidence. In the two years that had passed since Aguilar was arrested, no one had done an in-depth, frame-by-frame analysis of that video. The team made a stunning discovery. Chris Aguilar did raise a fist against Corporal Jensen that night.
When viewed frame-by-frame, the video shows Aguilar yanking his right arm from the grasp of Corporal Jensen. As he does so, his arm and fist move up, up, up … then they mysteriously disappear from the video. Actually, most of Aguilar’s right leg also disappears. Of course, they didn’t really disappear — his arm and fist were right up in front of Corporal Jensen’s face, where he and Officer Hutchinson remember seeing them. If you examine the sequence of images with a focus on Aguilar’s right arm, you can see that as his arm raises, it slowly disappears from the video.
The discovery of Aguilar’s disappearing arm wasn’t the only gift his legal team found hidden in the video evidence. As Aguilar’s arm reached the height of its ascent, when it was closest to Jensen’s face, three frames gave us a precious glimpse into the officer’s state of mind that night. He reflexively raised his left hand in front of his face to protect himself from Aguilar’s swing:
Aguilar’s appendages are not the only things in the video that appear and disappear in the video. Large utility posts completely disappear and reappear, and at one point the top of a sergeant’s head inexplicably appears to be sliced clean off. Called “digital artifacts,” these anomalies are a common occurrence in cellphone and most videos. Digital artifacts occur when cell phone data is “compressed” to minimize the use of storage space on the device. A lot of data is lost in the process. Played at full speed, the video looks relatively clear and smooth. But when it is slowed down, the lost data becomes more apparent as parts and pieces of the scene are either disfigured or entirely missing. Unfortunately for Corporal Jensen in this case, Aguilar’s arm completely disappeared for nearly 17 frames of video, effectively concealing the swing Jensen saw and prompting the federal government to charge him and his partner with a number of felonies.
Fourth lesson: Never take a cellphone video at face value.
Get help analyzing that evidence from someone with real experience.
Criminal prosecutions of police officers are extremely political. This means that in many cases they are not necessarily based on an objective analysis of available evidence. Rather, they are driven by reflexive political impulses. When the mob is calling for blood based on what they think they saw in a five-second video clip, hasty and erroneous conclusions are made about criminal prosecutions, and the cops pay the price.
Early on in this case, prosecutors became fully invested in supporting Chris Aguilar’s faulty story. This blind spot caused them to ignore and even actively suppress valuable and objective evidence. Consequently, they doubled down and pursued the convictions of two innocent men.
Prosecutors believed Aguilar when he told them he was just happily humming that night and thought it was funny his father had been arrested. They ignored a statement made to the FBI by Aguilar’s own cousin in which he described Aguilar angrily confronting officers during the arrest and refusing to calm down. They ignored an admission by Aguilar’s brother that they were told by officers to “get back,” but that Aguilar’s response was “F--- that.”
Prosecutors were obsessed with the officers’ use of the phrase “getting within arm’s reach,” but turned a blind eye to the fact that every single person present that night provided multiple and varied estimates of the distance between Aguilar and arrestees. The government’s own FBI agent testified under oath to a faulty estimate that was more than three times the actual distance stated by the alleged “victim.”
The FBI agent had the opportunity to measure that distance with a tape, during daylight hours, and she still got it wrong. Told months later to go back and re-measure the distance, she returned with “new” estimates that were still double the actual distance. Yet the government allowed Jensen and Hutchinson no margin for error.
In sum, Aguilar’s brother admitted he and Aguilar came within several feet of the officers; his cousin by Aguilar’s own cousin aid they got within 10 to 12 feet; the FBI claimed it was 92 feet, then later 59 to 69 feet; at various times Aguilar claimed it was 200 feet, 30 feet, 10 to 12 feet, and “no closer than 7.” Yet only the officers ended up in the hot seat for the way they worded their estimates, made in a split second while multitasking in the dark, in the middle of an angry crowd.
In the interest of space, only a few examples of evidence omitted by the government are given here. In reality, mountains of evidence supported the truthfulness of what Corporal Jensen and Officer Hutchinson said in their reports and sworn testimony. Yet the federal government ignored the evidence, actively and aggressively suppressing that evidence from trial, choosing instead to pursue convictions of two blameless men.
Michael Schwartz highlighted the government’s hypocrisy in his closing argument. The Department of Justice Civil Rights Division (essentially an anti-police unit) prosecutor — sent in from Washington D.C., — told the jury that the case was “disturbing.” Schwartz told the jurors that he agreed, but for very different reasons. Michael cited all the missing facts and evidence suppressed by the government. He challenged the men and women on the jury to abide by their oath and judge the government and its case, telling the jury that they should be offended and disturbed that the government was attempting to mislead them. He asked the jury: How can an FBI agent called as a witness by the prosecution testify under oath in a federal proceeding and exaggerate a critical measurement by a factor of three times and not be charged with a crime?
Fortunately, the jury saw through the prosecution’s deceptions and quickly returned a resounding not guilty verdict for each officer. Their unanimous decision repudiated the government’s tactics and manipulation of the evidence.
We are honored to have represented Chad Jensen and are incredibly indebted to the 12 men and women who did their duty in pursuit of the truth. An ecstatic Corporal Chad Jensen and his family couldn’t thank Michael Schwartz, Nicole Pifari, the entire RLS team, PORAC LDF and God enough for, in Chad’s words, “giving him his life back.”
About the Authors
Michael Schwartz is a partner and senior trial attorney in the firm’s Legal Defense practice group. He has successfully defended peace officers in some of California’s most high-profile criminal cases. Nicole Pifari, a former police officer, is a member of the Legal Defense practice group who handles criminal and administrative cases.Rains Lucia Stern St. Phalle & Silver has assembled an elite group of trial attorneys, litigators, experts and investigators to defend peace officers in criminal and administrative cases.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.