LAPD Misconduct Cases Rarely Resulted in Charges

Los Angeles County prosecutors for years have routinely declined to file charges against LAPD officers accused of crimes, in many cases despite substantial evidence of their guilt, a Times investigation has found.

Since 1995, the Los Angeles Police Department has referred hundreds of potential criminal cases against its own officers to the district attorney, but only a fraction of those officers actually have been prosecuted.

Even cases in which the accused officer has confessed to the alleged crime or was caught in the act on videotape have been rejected by lawyers in the district attorney's Special Investigations Division, who prosecute crimes committed by public officials, including police officers.

Over the last five years, more than 350 cases, involving about 500 LAPD officers, have been sent to SID. Of those, 27 cases, involving 32 officers, have been prosecuted, according to the district attorney's own records. That is a prosecution rate of about 8%, dramatically lower than the district attorney's overall 70% prosecution rate for cases against average citizens.

District attorney records also show that out of nearly 100 of those cases alleging excessive force by LAPD officers during the period, only one was criminally prosecuted, and the officer ultimately was allowed to plead no contest to a misdemeanor. That number rose by two just last week when two former Central Division officers were indicted in connection with the alleged beating of a homeless man in 1997.

For their part, officials in the district attorney's office argue that it is much more difficult to prosecute police officers than average citizens. They need nearly airtight cases, prosecutors say, to convince jurors that a police officer has broken the law.

"We don't pull any punches," said Allen Field, director of the district attorney's Bureau of Special Operations and a top assistant to Dist. Atty. Gil Garcetti.

The Times reviewed nearly 200 cases that the LAPD has presented to the district attorney since 1995 and found that prosecutors often had reason to decline a criminal filing. Many cases were problematic from the start, pitting the uncorroborated allegations of criminals against officers who denied any wrongdoing. But there also were dozens of cases in which there was compelling evidence that the accused officer did commit a crime.

Among those cases:

* An officer who was caught on videotape approaching a man from behind and striking him over the head with his metal flashlight, apparently without provocation. It was an assault "so blatant," according to an official with the city attorney's office, that the city paid the victim, an alleged gang member, $160,000 to settle his civil rights lawsuit. The officer remains on the job.

* A detective who filed a false police report claiming his car was stolen, when in fact he had sold it. As a result, an innocent man was arrested and taken to jail. The detective remains on the job.

* A veteran officer who detained his paperboy and the young man's father at gunpoint after the morning newspaper errantly struck the officer's car, which was parked in his driveway. The officer resigned with disciplinary action pending.

* A motorcycle officer who admitted stealing $800 worth of parts from his department-issued motorcycle and secretly replacing them with parts taken off his personal motorcycle, which he used for off-duty jobs with the film industry. The officer retired before any administrative action was taken.

* Two officers who were in an unmarked police car when witnesses said they ran down a homeless man pushing a shopping cart through an intersection. The officers then sped off without rendering aid, according to the witnesses. Both officers remain on the job.

* An officer who was overheard on an FBI wiretap acknowledging that he "shouldn't use" the cell phone on which he was talking because it had been illegally cloned. The officer remains on the job.

While potential felony cases against officers are presented to the district attorney's office, potential misdemeanor cases--which involve lesser offenses--are sent to the city attorney's office for review. Matt Middlebrook, a spokesman for City Atty. James K. Hahn, said the office does not record the number of cases presented by the LAPD or keep track of how many officers have been charged or convicted.

Police officials refused to provide a list of such referrals. But according to confidential LAPD internal affairs logs obtained by The Times, hundreds of misdemeanor allegations against LAPD officers have been referred to the city attorney over the last five years. As is the case with the district attorney, the city attorney has declined to prosecute the vast majority of officers referred to its attention.

Gigi Gordon, a criminal defense lawyer who was appointed by the Superior Court to protect the rights of potential victims of the LAPD corruption scandal, said only one conclusion can be drawn from The Times' findings.

"Police officers in Los Angeles are immune from prosecution," she said.

No Such Thing as a Slam-Dunk Case

District attorney officials reject that notion, saying that over the last five years the office has successfully prosecuted LAPD officers for offenses including drug theft, solicitation of bribes, stalking, forgery, fraud and sexual assault.

There are many factors that might deter a prosecutor from filing charges in what may seem like a good case, Field and other prosecutors said. Even cases prosecutors considered "slam dunks" have resulted in disappointing verdicts.

One need look no further, prosecutors said, than the 1991 police beating of motorist Rodney G. King to know that videotape evidence is no guarantee of a conviction. Despite the tape, the district attorney's office lost its state case against the officers, who were later convicted in federal court.

Even crooked cops can appear credible on the witness stand, especially when compared with the drug dealers, gang members and prostitutes who often are their accusers, prosecutors said. Prosecutors also allege that the LAPD's internal investigations are not always thorough, and that some of the cases referred for prosecution are weak.

"A lot of real insignificant cases were coming our way," said James Cosper, for years SID's point man in dealing with the LAPD, "cases that were just never going to be proven beyond a reasonable doubt."

But others, including several former SID prosecutors, say the bottom line is that the unit could file more cases than it does. A common problem, they said, is the tendency to be overly skeptical of police abuse claims by victims and witnesses with dubious backgrounds, and the inherent fear of losing such cases if they are filed.

"Even if you lose cases, you need to be there," said Superior Court Judge James A. Albracht, a former SID prosecutor. "You need to let the officers know there is oversight."

Albracht and others said there is also a tendency for prosecutors to become too closely aligned with the police, with whom they have worked side by side for most of their careers.

"My honest feeling is that the D.A. shouldn't be handling these cases," the judge said, adding that a special prosecutorial agency or other independent body should take over the responsibility.

The Times review, undertaken after allegations of widespread corruption in the LAPD, was based largely on an examination of hundreds of district attorney files and Police Department documents obtained through public records requests. The investigation dealt exclusively with cases that the district attorney says were formally referred by the LAPD to the Special Investigations Division.

The Times investigation did not examine the handling of other cases against officers, including allegations of domestic violence and driving under the influence, which are sent to other divisions in the district attorney's office. Nor did it take into account cases in which prosecutors, as a matter of protocol, investigated officer-involved shootings and in-custody deaths.

The relatively few criminal prosecutions of LAPD officers, some legal experts say, could foster an above-the-law mentality among officers, such as the one that allegedly prevailed in the scandal-plagued Rampart Division.

In fact, before the scandal broke, district attorney records show that at least eight Rampart officers currently under investigation in the corruption probe previously had allegations of criminal conduct leveled against them. Those allegations ranged from rape to excessive force. In each case, however, the district attorney declined to prosecute.

Rampart Probe Renews Interest in Case

The most striking example was the case of former Officer Brian Hewitt, who allegedly beat a suspect bloody at the Rampart station. LAPD officials avidly sought charges in that case and, later, publicly denounced prosecutors for failing to file them. In light of the corruption allegations that have surfaced since September 1999, district attorney officials say the case is once again under review, this time by prosecutors on the special Rampart corruption task force. The task force, which is independent of SID, has filed criminal charges against five current and former Rampart officers, one of whom is facing an attempted murder count.

But in the years leading up to the Rampart scandal, charges against officers were rare, despite the evidence against them.

That was the case in the alleged police assault on a man named Jamaal Gaither.

According to district attorney records, Gaither was part of a crowd standing outside Martin Luther King Jr./Drew Medical Center on Aug. 24, 1996, after an alleged gang member had been shot and taken there for treatment.

The crowd, mostly gang members, became unruly and started taunting a group of police officers. The police, in turn, tried to disperse the crowd. It was at that point that LAPD Officer Alonzo Calderon came up behind Gaither and hit him over the head with his metal flashlight.

The incident was captured on videotape by a two-person documentary film crew. The cameraman said Gaither, allegedly a gang member, was struck so hard that he could hear the blow from inside the van, where he was taping. Both the cameraman and a friend of Gaither described the officer's actions as unprovoked.

The videotape, a copy of which was obtained by The Times, shows Gaither, a lanky young man, apparently following the order to leave the area. Suddenly he is struck from behind and grasps his head in pain.

Two LAPD officials who are considered experts in use-of-force policies were shown the videotape and told prosecutors they would testify in court that Calderon's actions were improper and violated department policy.

Calderon refused to be interviewed by prosecutors, but his attorney told investigators that Gaither had flung a bottle toward the officer earlier in the evening. The lawyer also said that Calderon actually intended to "reach around" Gaither with the flashlight in order to restrain him, but momentarily became distracted by another disturbance in the crowd and accidentally struck the man on the head. Both that disturbance and the bottle-throwing episode are "conveniently" not depicted on the videotape, according to the memo Deputy Dist. Atty. Dennis Poey wrote explaining why the office would not prosecute.

But having jurors in a federal civil rights trial watch the tape was a risk that lawyers in the city attorney's office were not willing to take. The city paid Gaither, who records show is currently in jail on a murder charge, $160,000 to settle his lawsuit.

Calderon, in an interview with The Times, said he was suspended for 33 days without pay as a result of the incident and has been assigned to administrative duties ever since.

"I took a big hit for this," Calderon said.

Poey, the prosecutor, declined to be interviewed for this article.

In another alleged flashlight assault, prosecutors in 1999 declined to file charges against an officer despite photos of the victim showing "faint red circular marks, possibly made from the butt end of a flashlight."

In that case, the alleged victim, Steve Noles, told investigators that Officer Alfredo Mora struck him several times in the rib cage with a flashlight while he was sitting in the back seat of a patrol car. Noles also said the officer pushed his face into a block wall.

Cosper, a deputy district attorney, rejected the case, citing insufficient evidence and saying, "Noles apparently has a history of antagonism toward police officers."

Cosper's memo, which is dated April 13, 1999, does not mention the fact that when he declined to proceed against Mora, the officer had two other complaints pending against him, one alleging excessive use of force, the other alleging an attempted assault while off duty. The pending excessive-force case also involved an alleged threat "to administer the flashlight treatment."

"We couldn't prove the allegations beyond a reasonable doubt," Cosper said in a recent interview.

Mora was fired from the LAPD in July 1999 after being found guilty of using excessive force. When contacted by The Times, he declined to discuss the details of his case.

Another case that was not prosecuted stemmed from an off-duty officer's confrontation with his 17-year-old paperboy and the young man's father.

Henry Stockdale, at the time a Los Angeles police officer, had just returned home from a night shift, and was parked in the driveway of his Antelope Valley-area home, when he heard a thud and saw a car drive past.

Stockdale immediately pulled out of his driveway and chased the car, flashing his lights until it came to a stop, documents show.

"Stockdale got out of his car, pulled his handgun, pointed it at James Dean [the paperboy], and asked, 'What the [expletive] did you throw at my car?' " according to district attorney files.

"Stockdale then approached the passenger side of the Deans' car with his gun still pointed at James Dean. He said that he was LAPD and told them to show their hands," the documents state.

When Dean and his father explained that they were merely delivering the morning paper and that one must have accidentally struck Stockdale's car, the officer checked for damage and left, according to the prosecutor's documents.

Nine months earlier, while working off duty as a security guard at a Sherman Oaks mall, Stockdale pursued two young men suspected of spraying graffiti on a wall.

Stockdale caught and arrested one suspect. The young man alleges that, during their encounter, Stockdale pointed a handgun at his head and threatened to "blow his brains out" if he moved.

Deputy Dist. Atty. Randall Baron declined to file charges in either incident. Noting that Stockdale resigned as a result of the allegations, Baron wrote in his April 23, 1997, memo: "It appears that the interests of justice have been adequately served."

In other cases, prosecutors have declined to file charges even when the accused officer admitted his involvement in the offense.

Det. Martin Chalupa, for example, filed a false police report claiming that his car had been stolen when, in fact, he had sold it.

Chalupa stated in his police report that he had "locked and stored his vehicle in the garage of his rental condo [and] later discovered it missing… . No one had permission to take the vehicle [and] no monies [were] owed."

An investigation revealed that Chalupa, after selling his car to an acquaintance, decided to report it stolen because the man allegedly stopped making payments. The man's mechanic, who was taking the car for a test drive, was stopped by police.

Chalupa continued to lie, even when he knew an innocent man sat in jail facing car theft charges. The suspect was released after detectives discovered a handwritten bill of sale, which Chalupa had signed and given to the man who bought his car.

It is a potential felony for a police officer to knowingly make a false statement in a police report. There is another statute that makes it illegal for an ordinary citizen to file a false crime report. But the district attorney's office declined to prosecute Chalupa under either statute.

Because Chalupa "occupied the role of a crime victim" when he filed the report, he should not be prosecuted under the law governing police officers, determined Deputy Dist. Atty. Susan Chasworth.

"The statute's clear intent is to punish police officers who, in the course of their official duties, knowingly make false statements in their reports," Chasworth wrote in a Feb. 12, 1998, memo. "Application of this statute to Det. Chalupa is contrary to the legislative intent and may provide a ground for dismissal."

As for the law against a citizen filing a false report, Chasworth noted that it is only a crime if the complainant knows the report is false. Despite the admittedly false statements in the report, Chasworth determined that Chalupa might mount a successful defense by arguing that he actually believed his car had been stolen.

Another problem with the case, Chasworth said, was that internal affairs detectives were unable to locate and interview Bart Wyatt, the man who bought Chalupa's car. Wyatt, who has lived at the same address since the incident occurred, was located by The Times. He declined to be interviewed, however, saying he feared reprisal by the police.

Chalupa, still a detective with the LAPD, said he was suspended for a number of days--he would not say how many--and that he did not disagree with the penalty.

"I screwed up," Chalupa said. "I did something dumb. I made a mistake."

The D.A.'s office also has declined to file charges against LAPD officers even when its own lawyers concluded that a crime had indeed been committed.

Daryn Dupree, according to district attorney files, was overheard by FBI agents conducting a wiretap as part of a drug investigation. Dupree was telling his wife that he "shouldn't use" the phone he was on because it was "chipped," a term for a legitimate cellular phone account that has been captured and illegally cloned into another handset.

The FBI passed the information along to the LAPD's internal affairs unit. Detectives there found that Dupree also had improperly accessed the department's computer system eight times, seeking information on the girlfriend of the FBI's target in the drug probe.

Deputy Dist. Atty. Poey declined to prosecute Dupree on either charge, though he acknowledged in his explanatory memo that "the evidence presented indicates that Officer Dupree violated [the law regarding the use of a cloned phone]."

In rejecting the illegal computer access charge, Poey reasoned that Dupree might claim that he was investigating a crime.

Poey concluded that "in the interest of justice … disciplinary action against Officer Dupree would be best handled administratively."

An LAPD Board of Rights found Dupree guilty of both charges and suspended him without pay for 44 days, department records show. Dupree, who remains with the LAPD, declined comment.

Another case in which prosecutors found sufficient evidence that an officer broke the law, but did nothing, involved Victor Colello.

Colello, according to district attorney files, drove his LAPD motorcycle home one night against department policy, parked it in his garage and began removing parts.

As two other officers looked on, Colello took the parts from the LAPD vehicle and put them on a personal motorcycle that he used for off-duty jobs with the film industry, documents say. He then took the matching parts from his "movie bike" and put them on the LAPD motorcycle.

But according to a prosecutor's memo, "Murphy's Law … took over." The LAPD motorcycle was apparently damaged during the unauthorized parts swap.

Colello and the two other officers--his son Geno and friend Raymond Martin--loaded the disabled bike into Geno's truck and drove it to the Devonshire Station, where they dropped it off, saying nothing about its condition, according to documents.

On Oct. 31, 1996, Victor Colello arrived for his shift and saw that his motorcycle was surrounded by yellow crime scene tape and was being held for fingerprinting.

"At that time [Victor Colello] realized that he had made a mistake, and admitted his misconduct," according to a memo by Deputy Dist. Atty. Cosper.

"Victor Colello clearly embezzled property belonging to the Los Angeles Police Department," Cosper wrote. "We could simply file felony criminal charges. Victor would be arrested, suspended and, in all likelihood, convicted. The issue, however, is whether this is an appropriate resolution of the matter."

Citing Colello's 25 years with the LAPD, his "momentary lapse of judgment" and the fact that he eventually returned the "purloined parts," Cosper declined to file charges "in the interest of justice."

Colello retired from the LAPD soon after his case was referred to the district attorney's office in July 1997.