THE LAW ENFORCEMENT INVESTIGATION OF
THE ANDY LOPEZ SHOOTING:
Conspiracy or Stupidity?
By Jan B. Tucker
For background, you should read the District Attorney’s report with my appended PDF critique at: http://www.janbtucker.com/jb_tucker_in_action.
In None Dare Call It Conspiracy, the late John Birch Society theoretician Gary Allen opined that “To think that the scientifically engineered Crash of ’29 was an accident or the result of stupidity defies all logic. The international bankers who promoted the inflationary policies and pushed the propaganda which pumped up the stock market represented too many generations of accumulated expertise to have blundered into ‘the great depression.’”
The greatest problem with conspiracy theories is that it is very easy to mistake simple incompetence and gross negligence for conspiracies. All too often I find myself arguing with my leftist friends who simply don’t know how police agencies and prosecutors work – or for that matter government and industry in general – that their perception of conspiracy is based on nothing more than post hoc ergo propter hoc thinking. One event is followed by another event in time so the first event must be the causation of the second event…..which does not logically follow because there may be causative factors that one simply is unaware of.
With Sonoma County District Attorney Jill Ravitch’s investigation of the shooting of Andy Lopez however, I simply cannot believe that the investigators and expert witnesses involved were so completely inept that (a) they didn’t ask any questions of the witnesses concerning their perceptions of the weight of the replica AK-47 that Andy Lopez was carrying and (b) that they apparently never bothered to conduct a re-enactment of the incident. One caveat: maybe they did these things but those details are missing from the D.A.’s report and if they did, then it can only be because the results of a re-enactment and the answers to those questions would have run counter to the conclusion that the officers shot Andy Lopez legitimately.
The District Attorney’s report (hereinafter “Report”) claims that the investigation was thorough. This conclusion on its face always has to be a qualified claim in California, because California Government Code Section 3307, a part of the Peace Officer Bill of Rights introduced by then-Assembly Member Jim Keysor in the early 70s, gives peace officers a privilege that no other government employee in the state enjoys. By reason of the Government Code Section 3307, Peace Officers cannot be required to take polygraph examinations, a privilege that does not exist for the FBI, CIA, or any other State or Federal employee. The “Methodology” of the District Attorney and the police investigators into any police misconduct begins as inherently flawed because it’s arbitrarily limited by the Government Code for strictly political reasons. That the Report fails to note such limitation represents a gross disregard of epistemology.
Because lie detectors cannot be used with peace officer witnesses under the Government Code, the question that needs to be asked of all investigators and expert witnesses in the matter is HAVE YOU EVER BEEN TESTED ON YOUR ABILITY TO DETECT DECEPTION IN AN INVESTIGATIVE INTERVIEW OR INTERROGATION? If so, what were your personal results on the test? Who administered the test and what were their qualifications? Without a polygraph of the law enforcement witnesses the investigation is by definition neither thorough, complete nor comprehensive. Just because the law limits their ability to do this kind of investigation they should not pretend that there are other investigative techniques that could be used and which would have been used by the FBI Office of Professional Responsibility or another federal internal affairs office as examples.
The Report appears to have limited the inquiry into Deputies Gelhaus and Schemmel’s backgrounds to review of their “personnel and training records.” Why limit the inquiry to “personnel and training records” and not look at the records of their entire life histories? Why not interview their school classmates to see if they had a reputation for racism, poor impulse control or bullying?
In a November 2008 SWAT Magazine article, Ambush: Reaction in the Kill Zone, Deputy Erick Gelhaus, amongst other things wrote such gems as “You’ve got to have a mean gene in you” and “Neighborhood policing is a contact sport.” By limiting the investigation to “personnel and training records” Gelhaus basic mental fitness to be a peace officer is not even under the microscope, even though reasonable people might think he ought to have a serious psychiatric examination for making these statements. One also wonders whether, as many police departments do in the hiring and vetting process, did the Sonoma County Sheriffs Department administer an MMPI (Minnesota Multi Phasic Inventory) exam. If so, I’d really like to see what Gelhaus and Schemmel’s “L” scores were, because criminologist research over decades has shown an important co-relation between elevated “L” (generally referred to as “lie” scores, but it’s not quite as simple as that) and on-the-job misconduct for peace officers.
Another problem with the limitations placed on the background component of the investigation is that it ignores the purchase by Gelhaus of an overtly sick and racist bumper sticker from a right-wing and racist internet website. Gelhaus’ COEXIST bumper sticker is a spoof with a target over the “O” and a skull and crossbones for the “X.” This bumper sticker was purchased from www.patriotpostshop.com, which features amongst its offerings a whole category of “ANNOY A LIBERAL” shirts, notepads, mugs, magnets, stickers, “Tee off a liberal” golf balls, and ink stamps like “PROPERTY OF BARACK HUSSEIN OBAMA,” “TAX EVADER,” and “PAYABLE TO RED CHINA.” The so-called “Humor” section of products includes official looking cards entitled “Obama Entitlement / Race / Exemption wallet cards” and other equally offensive items.
The Report notes that Gelhaus had been a member of the MAGNET anti-gang team. A competent investigator would immediately wonder if he ever testified as a gang expert in court to get a “gang enhancement” charge or conviction? If so, did they review his past testimony? So-called law enforcement “gang experts” are frequently liars and/or idiots who might technically meet “Frye” standards but could not possibly meet the more stringent “Daubert” standards in a federal court proceeding.
Private Investigator and expert witness on gang issues Gregorio Estevane says “that the objectives of a gang control effort depend on whether the problem is defined as gang violence, gang crime, or the gangs’ very existence. Law enforcement officials often take the public position that gangs must be eradicated. In the words of Captain Ray Peavy, who heads the Los Angeles sheriff’s homicide bureau, ‘Everyone says, ‘What are we going to do about the gang problem?’ It’s the same thing you do about cockroaches or insects; you get someone in there to do whatever they can do to get rid of those creatures’ (Garvey and McGreevy 2007).”
Estevane also argues that “the proliferation of specialized gang units has been justified as a natural response by police officials to the spread of gangs and growing public concerns over gang crime. The argument for such units is that they permit officers to develop the technical skills and expertise needed to diagnose local gang problems and to assist the rest of the agency and the community to address them. But the idea that the formation of a gang unit is ‘a result of rational considerations on the part of police agencies’ that face ‘real gang problems’ has been challenged by several researchers (Katz and Webb 2003a).“
In addition to having trained as a deputy on the use of an AK-47, the Report notes that Deputy Gelhaus “….approximately a month prior to this incident, Deputy Gelhaus participated in a firearms training in which AK – 47 rifle rounds were fired into and through a mid – size sedan. Thus, he was highly experienced in recognizing this weapon and understanding its capabilities.” I would add that he also would be highly knowledgeable about how heavy an AK-47 is and the relevance of that weight load to how a person would normally carry the weapon.
I have handled and shot an AK-47. In fact, a 1987 or 1988 edition of Penthouse Magazine has a picture of me in a photo-essay at the head of a firing line of a bunch of psychos from the Jewish Defense League (JDL) wearing my trademark Mogen David necklace and holding a Chinese made AK-47. Depending on whether it’s loaded or unloaded and what kind of ammunition magazine is being used, an AK-47 weighs somewhere between 9.75 lbs and 10.5 lbs.
According to the Centers for Disease Control (CDC) the average weight for American boys at that age is 102 pounds. While I have not seen Andy Lopez’s exact height and weight I have met his brother and the family does not appear to be heavy or tall, so with an average boy’s range from 80 pounds at the 10th percentile to 135 pounds at the 90th percentile, my guess is that Lopez’s weight was somewhere between 80-90 pounds. Let’s liberally estimate Andy’s weight at 100 lbs. and then contemplate just how he would have been carrying an AK-47 based upon the witnesses’ descriptions.
A witness in the Report identified as John Doe #4 indicates that when he saw Andy Lopez he had a weapon in his left hand with the barrel pointed down. The Report states:
“He thought the rifle was a toy and it looked “like a plastic” and “I think it’ s fake, but I’m not sure” it was “way too light ” and ….He said he thought those guns would be heavy and that gun “looks like very light.” [Emphasis added].
In spite of John Doe #4’s statement, it does not appear that the “investigators” bothered to ask any other witness what their perception of the gun’s weight was at any time in the investigation. If they did, they did not report what anybody said about the issue. If the issue of weight had not independently occurred to the investigators and expert witnesses used by the District Attorney up until John Doe #4 was interviewed, it would have logically occurred to a sane, reasonable, honest and competent investigator to start asking questions along these lines and to re-interview any witnesses who had not independently brought it up as John Doe #4 did.
When John Doe #7 saw Andy Lopez he indicated that Lopez was holding the gun in his right hand with the barrel facing down. He also thought it was a BB gun for a variety of reasons described in the report, but at the point he was interviewed, after apparently asking him open ended questions that elicited his responses, nobody apparently asked him about the weight factors of the gun in his perceptions. Note that while John Doe #4 saw the gun in Lopez’s left hand and John Doe #7 saw it in the right, both saw it being held in only one hand with the barrel pointed down. The question arises, could anybody of his size and weight hold an AK-47 in only one hand?
Craig Fries of Precision Simulations was hired by the District Attorney to recreate the incident as a digital animation:
The District Attorney’s Office retained the services of Precision Simulations to attempt to create a 3- D analysis of the shooting event and the path of each of Deputy Gelhaus’ bullets. In order to provide the most accurate and complete report possible, the District Attorney Investigator measured the bullet holes to John Doe #3’s house and assisted Precision Simulations in performing the following: scene visit, including viewing the bullet holes in the fence and house; conducting a field survey to create a 3- D laser model of Deputy Gelhaus’ patrol car, an officer assuming the firing position of Deputy Gelhaus at the time of the shooting and of an exemplar hand gun; and scene view and measurements of the location the intact round which came to rest on Anteeo Way.
So, since they did a scene visit including a partial recreation of what Deputy Gelhaus did, why didn’t they take the time to do re-creations of what Andy Lopez did using the replica gun he actually had as well as a real AK-47 with a youngster of the approximate weight and stature of Lopez. Their failure to do so speaks volumes and as Robert Louis Stevenson wrote in The Truth of Intercourse:
The cruelest lies are often told in silence.….And, again, a lie may be told by a truth, or a truth conveyed through a lie. Truth to facts is not always truth to sentiment; and part of the truth, as often happens in answer to a question, may be the foulest calumny. A fact may be an exception; but the feeling is the law, and it is that which you must neither garble nor belie. The whole tenor of a conversation is a part of the meaning of each separate statement; the beginning and the end define and travesty the intermediate conversation.
So, by producing a 3D animation with the selected facts and inputs that the District Attorney’s office chose to offer to Precision Simulations, they guaranteed a recreation of a partial truth and within that truth is the suppression of the facts that could just as easily have been ascertained.
Dr. William Lewinski, the District Attorney’s (whose name is misspelled as “Lewinsky” throughout the report) police force expert cited in the report, has been thoroughly exposed as a ‘prosecution whore’ in a brilliant piece of investigative journalism by reporter Bob Egelko (http://www.sfgate.com/bayarea/article/Expert-witness-in-toy-gun-case-has-history-of-5614736.php).
Private Investigator Alex Salazar who worked on behalf of the Lopez family for their ongoing civil matter is unable to comment on the specifics of the case because it is still under litigation. However, he is disturbed by the justification for the murder of 13-year-old Andy Lopez given by expert witness Bill Lewinski whose testimony always sides with the use of force by police. Lewinski interviewed only one witness in the Andy Lopez case, although he claims to have looked at statements made by several witnesses.
Salazar is not alone in criticizing Lewinski’s obvious bias in support of police force which has been publicly expressed by a number of attorneys who have fought police brutality cases voiced in the Bob Egelko’s SF Gate article and at http://sfist.com/2014/07/11/expert_in_andy_lopez_shooting_also.php and http://www.citypages.com/2010-04-28/news/bill-lewinski-defends-cops-accused-of-excessive-force/. “At what time has Lewinski ever been on any side except in favor of police excessive force? How can this be construed as being impartial or fair?” Salazar laments.
Nick Pinto’s City Pages article explains that “In most cases, Lewinski is called upon to present a scientific-sounding justification for what looks on its face unjustifiable.” [Emphasis added]
Dr. Lewinski’s first statement in his analysis of “Decision, Act & Time” in the Report begins with the contention that “Since the time of Aristotle, Western culture has accepted that reasoning is virtuous. The tenor of his teachings, which were further reified by Augustine and Descarte was that morally acceptable decisions were only possible when we renounced passions and emotions to the quest for rationality in all endeavors.” Pinto’s characterization of Lewinski as making “scientific sounding justification” is spot on; this is my analysis of Lewinski’s pedantic explication of his philosophy of science:
This expert should spend more time on Heisenberg’s “Uncertainty Principle,” “impossibility” theorems, and “Ockham’s Razor” than St. Augustine and Descarte, especially because Augustine is applicable to Roman law (Napoleonic Code) system and not necessarily to Anglo Saxon common law systems of justice. He should also consider whether Descarte’s cogito ergo sum is more relevant than Jose Ortega y Gasset’s “I live therefore I think.”
My bottom line in that analysis is that while jurors without a minimum four-year degree in one of the social sciences who got at least a “B” in their methodology requisite course and who hopefully had a professor who emphasized “philosophy of science” as opposed to statistics will have no basis to understand the implications of what Lewinski’s talking about, other than that it sounds like he must be really intelligent. Anybody who actually has an appreciation for the finer points of methodological debates on epistemology and ontology would immediately recognize that Lewinski is simply taking the position one of three major schools of thought within Political Science methodology and asserting that his school is correct and the other two schools are wrong. Lewinski’s pseudo-scientific opinion is straight out of the smallest of the schools of thought, i.e., he exposes himself with that statement as a “Straussian” or follower of Political Scientist and philosopher Leo Strauss. The other schools of thought are the Behavioralist (or logical positivist, the largest) and Phenomenology (the school that I happen to adhere to, smaller than the logical positivists but bigger than the Straussians). That Lewinski begins by claiming that his methodological philosophy is widely accepted in contemporary civilization sounds okay to average jurors, but not to other social scientists and epistemologists.
Lewinski makes much of his interview with Erick Gelhaus, the sole witness he personally interviewed (why as an expert witness he relies on secondary sources almost exclusively is beyond belief, and would be outright rejected as inappropriate, certainly by Behavioralists, Phenomenologists and probably even by Lewinski’s fellow Straussians). My critique appended to the Report, mindful of the Heisenberg Uncertainty Principle and the Impossibility Theorem, is “Have you [Lewinski] or anybody else who actually spoke with Gelhaus TESTED in detecting deception in an interview? I am. I got 8 out of 9 correct in a blind test by the late Dr. Maureen O’Sullivan of the University of San Francisco.” For Lewinski to rely on his own ability to determine whether Gelhaus is truthful or not in the first place is arrogant beyond the pale.
Lewinski’s sixth conclusional area involves the “research” into the relation of officer reaction times to the ability of people to raise a firearm in a given time period into a firing position. Nowhere does he analyze whether any of this research involved the ability of juveniles weighing under 100 lbs to bring an approximately 10 lb gun into position to fire. What may be valid for adults might be relevant to the conclusion he’s drawing. If there were no juveniles in the study then at best the relevance is peripheral to what Lewinski wants the public to believe.
I am a “switch hitter” when it comes to criminal, civil and administrative proceedings involving law enforcement. I do both prosecution work and defense work, e.g., civil plaintiff’s work and civil defense work; pro-prosecution investigation in criminal trials and defense investigation; and I have both brought complaints against peace officers and defended peace officers in administrative and other legal proceedings. I cannot be characterized as either a “plaintiff’s whore,” “a defense whore,” or a “prosecution whore” because I am available to give the best truthful advice and testimony for any side who needs me and who wants an honest opinion.
A signpost of who is a “whore for hire” in this business is whether you only work for one side; likewise, does only one side ever seek out your services and another side won’t have anything to do with you. Lewinski works only for the police, that is, for the governments who hire the police…..because he does testify against the interests of peace officers who have been shot by their brothers in blue on behalf of the government agency that employs the shooter. In one such case Nick Pinto’s City Pages article notes that “After Minneapolis police shot fellow officer Duy Ngo half a dozen times with a machine gun in 2003, Lewinski testified that the shooting may have been justified. The city ended up settling for $4.5 million.”
In fairness to Lewinski, several articles about him have quoted John C. Burton III, an attorney whose own reputation is tarnished, denouncing Lewinski’s court conduct. While Burton’s criticisms of Lewinski are spot on, he himself is no angel. A fanatical Trotskyist from the Healyite Socialist Equality Party, Burton has been repeatedly sued by former clients for sexual harassment.
My conclusion is that there can and should be no conclusion of the investigation into the death of Andy Lopez. Anybody who finds the District Attorney’s Report to be credible is susceptible to being talked into buying the Golden Gate Bridge, believing in Santa Claus and the Tooth Fairy, supporting Richard Nixon’s Vietnam policies, and believing that there were Weapons of Mass Destruction in Iraq before we invaded.
The Report demonstrates the inherent truth of two statements about the role of law enforcement authorities from the 60s:
“The police aren’t there to create disorder. The police are there to preserve disorder.”–Richard J. Daley, Mayor of Chicago, 1968
“Justice in America means ‘Just Us’ White Folk.”–H. Rap Brown.