All Shootings Good Shootings

 Posted on December 01, 2013 in Uncategorized

After Cardan Spencer tried to kill Bobby Gerald Bennett in a gang-related shooting in October, Spencer lawyered up. One of his fellow gang members, Christopher Watson, talked to the police, though, and convinced them that Spencer was defending himself from Bennett, who was menacing Spencer and Watson with a knife. Bennett-who is not a gang member-got charged with aggravated assault.

Then the video emerged-a surveillance video taken by a neighbor. Spencer and his lawyer saw the video, and Spencer told his story then. The charges against Bennett were dropped, but Spencer was not charged.

As a result of this incident, the Dallas Police Department changed its policy regarding gang-related shootings. Instead of pressing gang members for statements immediately after shootings, police officers will advise them that they have seventy-two hours to get together and make up a story, and will provide them, during that time, with any video the police can find, so that they can conform their stories to the video.

It makes no sense, does it, that police policy should not just permit but encourage members of a criminal street gang who witness a gang-related shooting to take three days to talk to each other and their lawyers and review the facts that are beyond dispute before making a statement?

It makes sense only if the police want the perpetrators of such shootings to walk free. The idea would be farcical if the criminal street gang were anything other than the police.

I had a client, Mr. F, who was shot by a DEA agent, Derrick Conn, in the course of Mr. F's arrest. DEA agents and local police officers on a drug task force were following Mr. F because they believed he had been involved in a drug transaction; he collided at least twice with one of the agents, Derrick Conn, who shot at him three times, hitting him in the forearm once, after the last collision.

Deputies from the local (Brazoria County) sheriff's department who were not present at the time of the shooting investigated the shooting. The lead investigator noted in his report that, in addition to Special Agent Conn and Mr. F, there were eight witnesses to the crash and the shooting-three DEA agents:

1. Craig Cornelius;

2. Richard Vining; and

3. Scott Wilkins;

and five local officers from small-town police departments:

1. Alfonso Alvarez, South Houston PD;

2. Ivan Ontiveros, Jr., Pasadena PD;

3. Michael Patrick Pickell, Seabrook PD;

4. Will Raymon Kelly Jr., Pasadena PD; and

5. Greg Dalton, Pasadena PD.

A Brazoria County sheriff's deputy, investigator Buck Henson, sought to interview the official witnesses. He talked to Pasadena Police Officer Will Kelly first; Kelly told him that he saw Mr. F strike the driver's side of Agent Conn's vehicle with his truck, causing his truck to spin out. He said that he then saw Mr. F accelerate his truck forward and strike Special Agent Conn's vehicle in the front end. Kelly said that he stopped his Expedition behind Mr. F's truck so that Mr. F could not reverse backwards and either escape or try to injure Agent Conn with the GMC truck. As Detective Kelly got out and approached the truck from the rear, he heard three gunshots. Detective Kelly said that he noticed while getting out of his Expedition that Mr. F was continually moving in the cab of his truck and verbal orders was being given to Mr. F but he was not complying. Special Agent Kelly said Conn was wearing a ballistic vest marked "police" and "DEA."

So, according to Officer Kelly, who was right there, Mr. F got shot, not because he continued hitting Special Agent Conn's vehicle after Conn identified himself as an agent, but rather because he was "continually moving in the cab of his truck" and not complying with "verbal orders." At the scene of the shooting, Detective Kelly initially agreed to set his story down on paper, then (apparently after consulting with others at the scene) changed his mind and decided to invoke his right to counsel.

There were eight other cops (including Special Agent Conn, who had gone to the emergency room just in case) for the investigator to interview. All of them invoked their right to counsel at the scene.

A crime scene investigator from the sheriff's office, Mark R. Adams, studied the scene and found that Mr. F's car had, after colliding with Special Agent Conn's car and coming to a stop facing it, moved backward. In fact, there was a skid mark with the "appearance of an acceleration in reverse by [Mr. F's] truck which was stopped by making contact with [Officer Kelly's] Expedition." There was no physical evidence that Mr. F "revved his engine and struck [Special Agent Conn's] car again" after Conn identified himself as an agent.

Deputy Henson went to the hospital and interviewed Mr. F. Mr. F, who isn't a highly-trained police officer, didn't know to take the Fifth. He said that he thought he was being carjacked; a gold or tan colored car came out of a convenience store and caused him to wreck his truck. The next thing he knew, he was shot and the police were there. No lights were on. "When making left turn a brown Buick pulled out in front of me a the store I swerved to the right. He hit me from behind I spin around no lights was on to let me know that was a police. I was shot maybe 1 to 3 shot in arm, grazed on chest and neck."

Two days later DEA Special Agent Noel Bishop called Deputy Henson. He said that Conn had retained counsel (Lawrence Burger, whose job is representing federal agents who are involved in shootings). Because of Special Agent Bishop's role, it appears that the DEA agents may have invoked their right to counsel as a matter of agency policy.

The next day two things happened in the investigation. First, a lawyer, Jeff Binney, called, telling the investigator that he represented Special Agent Conn on behalf of Mr. Burger. Second, the investigator received supplemental reports from the local narcotics cops who had invoked their right to remain silent at the scene.

According to Officer Alfonso Alvarez, Conn exited his vehicle after Mr. F accelerated toward the front of his vehicle, striking it head-on. Conn then gave "verbal commands" to stop and show his hands, Mr. F refused to comply, and Conn fired his weapon three times. Alfonso then took cover, fearing for his life.

Officer Ivan Ontiveros, Jr.'s account matches Alfonso's (it's funny how witnesses' stories match when they have had three days to discuss them): Conn exited his vehicle after Mr. F "rammed" him twice from in front. Then "the suspect disregarded all instructions to stop and quit moving, he continued to make furtive movements inside the cab of the vehicle which could not be seen. Agent Conn then fired his weapon three times and struck the suspect several times."

Officer Michael Pickell, by his own account, didn't see much: "The suspect's vehicle started skidding and spun around. I then pulled up and stopped at the back passenger's side of Agent Special Agent Conn's vehicle. I then reached for my gun and as I was opening my driver's door to exit I heard three gunshots."

Now Detective Kelly also gave a written statement: "Immediately after striking Special Agent Conn's vehicle the second time, reverse lights came on as I closed distance to the rear of the vehicle. I heard three gunshots as I stopped at the rear of the suspect's vehicle. When exiting my vehicle I noticed the suspect continually moving in the cab of the truck and he was not fully complying with the verbal instructions he was receiving."

The last small-town narcotics cop who had initially taken the Fifth, Greg Dalton, didn't (as it turns out) witness any part of the incident as it was occurring, "but did arrive on the scene shortly after the fact.

So according to the blue wall of police officers who gave statements in support of Special Agent Conn, Mr. F collided with Special Agent Conn, spun, they were facing each other. They collided head-on at least once and stopped. Mr. F tried to accelerate backwards but was stopped by Detective Kelly's vehicle. Conn got out of his vehicle, ordered Mr. F to show his hands; Mr. F did not do so, so Conn shot Mr. F.

The Texas cops could have coordinated their stories better with the DEA agents'. Six days later-nine days after the incident-the DEA's assistant special agent in charge, Ray D'Allessio, brought the four DEA agents' statements to the sheriff's investigator. According to the statements, three of the agents arrived at the scene after the shooting. The fourth was Special Agent Conn; that's where the story gets extremely interesting. Conn claimed that, after the collision, when the two vehicles were facing each other in the road,

I immediately put my vehicle in park and opened my driver's side door, pulled my weapon, and pointed my weapon at the driver of the beige pickup truck, who remained inside the vehicle behind the steering wheel. I stood in the space that formed a "V" between my door and the vehicle and uttered a number of loud verbal commands to the driver of the beige pickup. The driver did not respond. I heard the engine revving and the vehicle immediately and quickly drove straight towards my vehicle and hitting the front left center of my vehicle with considerable force. As a result, my vehicle was pushed back and to the left. Door frame hit my right forearm. I took a step back, still in the V between the door and the car. Truck continued to push my vehicle backwards. I feared for my life and believed I was in imminent danger...I moved backwards and continued to fear for my life. I perceived no safe retreat. At this time, I fired my weapon at the driver of the beige pickup truck through the windshield in order to stop the threat to me. Driver moved slightly back and stopped revving the engine. Surveillance team arrived on scene and took driver into custody.

Conn's statement, written with the help of counsel several days after the incident, has all the right language to justify the shooting, but it is a fabrication. How do we know? First, because the statement doesn't match the physical evidence. Second, because none of the three other officers who admitted being present when the shooting took place saw or heard anything even remotely like Conn described.

In fact, the other officers' stories are demonstrably false as well. They claim that Mr. F was "making furtive gestures" (standard language when police are trying to justify misconduct) when he was shot through his windshield, but Mr. F's bullet wound was through his left forearm, proving that he had at least that arm raised as in surrender when he was shot.

None of the police officers reported to Deputy Henson that there were any marked vehicles involved in the chase, nor that any vehicle had flashing emergency lights or a siren. None of the officers reported that there were any flashing emergency lights showing before the shooting. (Special Agent Wilkins claimed in court that there were emergency lights flashing when he arrived, but he did not mention this in his statement to the Sheriff's Office and, in any case, he and the other DEA agents claim to have arrived after the incident.) The only way that Mr. F could have known that Conn was the police is that he was wearing a vest marked "police" and he identified himself as police when he got out of his car. Before Conn got out of his car Mr. F had no way to know that he was dealing with the police. Rather, when he collided with Conn's car, he thought he was being followed and pursued by people who intended to jack him. When he realized he was dealing with the police, he put up his hands and was shot through the arm.

On the basis of Conn's story, he was cleared by the DEA's Office of Professional Responsibility ("OPR"). None of the other DEA agents saw anything, and the OPR didn't have enough interest in the case to talk to the local cops on the task force.

A Brazoria County grand jury, however, considered aggravated assault charges against Mr. F, and no-billed him.

Police investigate possible crimes is to determine whether a crime was committed, and who committed it. If you are suspected of shooting someone, as soon as the police arrive you will be separated from the other possible witnesses, then stuck in a box with an experienced investigator who will try to get you to confess and, failing that, to tell some story that might be contradicted by the evidence. Investigators will make up their mind early, and then will craft their investigation to support their theory. You won't get to review the evidence first (in fact, they'll probably tell you lies about it), and you won't get three days to coordinate your story with the other witnesses because that would impede the investigation.

But the police are different. The only explanation for the Dallas Police Department's policy-and for the Houston Police Department's 288-shooting streak-is that when a cop shoots a "civilian," the police department doesn't view that as a possible crime. They make up their mind early-no crime was committed-and craft their investigation to fit that theory.

Bunch actually showed the video to the police before leaking it to the media. Brown said that the DPD pursued charges against the victim even after seeing the video because the police report, which was written by Watson, "overrode" the video.

The system failed in Bobby Bennett's case: Watson and Spencer had to make up a story on the spot for Watson to put in a report, and they didn't know that there was video that contradicted that story. As a result, Watson had to receive a token 15-day suspension for getting caught publicly obstructing justice, and Spencer had to be let go. It's just not fair. When cops shoot someone they should have at least seventy-two hours to fabricate a story.This was not a total failure-the system kept Watson and Spencer both from being prosecuted for felonies-but Chief Brown has fixed the loophole that allowed even this to happen.