Getting Away with Murder 

The Oakland Police Department can't lower the city's crime rate, because it doesn't catch criminals.

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Samier Ayesh was shot to death outside the East Oakland Dollar & More convenience store on June 10, 2010. Earlier that evening, Samier Ayesh and his brothers Adham, Awad, and Samey were getting ready to close their family-owned store for the night when they saw two boys tagging the Ayeshes' white truck in an adjacent parking lot. The Ayesh brothers caught the boys and roughed them up, spraying both of them with paint using the boys' aerosol can.

The boys ran two blocks to the younger boy's house where a party was taking place, and told the adults gathered there what had occurred. Several of the men, upset at what the boys told them, drove to the store and confronted the four Ayesh brothers. One or more of the men then opened fire, killing Samier Ayesh.

After a nine-month investigation, the Oakland Police Department arrested and charged Evaristo Toscano and Hector Vilchis with the murder of Samier Ayesh. Police Sergeant Sean Fleming, a former prison guard who joined OPD in 1999 and has worked as an investigator since 2006, was the lead detective. The case that Sergeant Fleming delivered to the Alameda County District Attorney's Office was much like other homicide cases that OPD brings to the DA: It included no forensic evidence. No DNA. No fingerprint analysis. And no weapon to match the 0.32 caliber casings recovered from the street and the corresponding bullets embedded in Ayesh's body.

The Ayesh murder case exemplified the Oakland Police Department's numerous investigative shortcomings. Forget what you've seen on CSI. In Oakland, cases aren't solved by highly trained lab geeks who uncover that single strand of fiber that solves a murder case. Instead, OPD often bases its cases — as it did in the case against Toscano and Vilchis — solely on eyewitness identifications.

And even that evidence in the Ayesh murder case was deeply flawed. During a criminal trial in front of Alameda County Superior Court Judge Vern Nakahara last month, Sergeant Fleming admitted in court that he had lost the audio-visual recording of a key interview with the Ayesh brothers and two key photo lineups that included one of the defendants. Fleming, who made $322,591 in total taxpayer compensation in fiscal year 2010-11, admitted in court that he had failed to file copies of the interview recording and the photo lineups with OPD's property section as required by department policy. He attempted to explain his mistakes by citing the 35 or 40 open homicide cases that he was handling.

On the afternoon of November 6, an Alameda County jury convicted Toscano of second-degree murder, but the jury hung 10-2 to acquit on all charges against Vilchis — the defendant whose guilt was cast into doubt by the missing interview recording and photo lineups.

Sergeant Fleming's errors in the Toscano-Vilchis case, along with the department's ongoing failure to gather forensic evidence and properly analyze the evidence it does collect, are representative of OPD's deep-rooted institutional dysfunction. In a city where police officers consume more than 40 percent of the municipal budget, are among the city's highest-paid employees, and have exerted an outsized influence on Oakland politics, the department's ability to perform its core missions — solve violent crime, catch criminals, and keep the public safe — is highly questionable.

As of late last week, there had been 108 killings in Oakland in 2012, four of which were ruled "justifiable homicides," such as the May 6 officer-involved shooting of teenager Alan Blueford by OPD Officer Miguel Masso. In the past five years, Oakland has recorded more than one hundred homicides annually, with 2010 being the sole exception.

But perhaps the most telling statistic is OPD's solve rate — known in criminal justice circles as the clearance rate — for homicides. According to the department's Criminal Investigations Division's annual management report, OPD investigators solved and prosecuted just 32 of the 110 homicide cases of 2011, or a clearance rate of 29 percent. Similarly, OPD posted a 30 percent clearance rate in 2010, when investigators sent 27 of the 90 murders that year to the Alameda County District Attorney's Office for prosecution. This is a decrease from 2009's clearance rate of 43 percent, when OPD investigators arrested and prosecuted individuals in 47 of the 109 homicides that year.

"People are literally free to kill again if they want," said Eugene O'Donnell, a professor of criminology at the City University of New York-John Jay and a former NYPD lieutenant, after being told about OPD's low clearance rate for homicides. "There's nothing more undermining to a community's sense of order," he added, referring to how Oakland's high number of unsolved murders contributes to the distrust of police prevalent in the city's impoverished neighborhoods, already heightened by The Riders scandal and recent officer-involved shootings.

By comparison, the San Francisco Police Department's homicide unit posted a 52 percent clearance rate in 2011 and a 64 percent clearance rate for this year to date. The California Department of Justice's report on 2010 homicides put the statewide clearance rate for homicides at 63.8 percent for that year.


OPD's inability to solve crimes is due in part to understaffing. And that problem, in turn, has been worsened by Oakland's fiscal crisis during the Great Recession and by a police budget that has been distorted over the past decade by sweetheart contracts with the police union that not only included excessive pay, but also unaffordable pension benefits. OPD now has fewer than 630 sworn officers, down from more than 800 in January 2009. As a result, Oakland has far fewer cops than similar-size cities with high crime rates, yet spends as much as those cities or more on policing per capita because of the generous compensation packages given to officers.

The city council and the mayor have funded two police academies that will put forty more officers on the street by January 2013, and another forty by next July, but OPD loses roughly sixty officers every year to retirements, disability, lateral transfers, and terminations. Mayor Jean Quan and City Administrator Deanna Santana's forthcoming Five-Year Financial Plan for the city will recommend allocating funds to guarantee two academies every fiscal year for the next half decade. But given the current salary package — officers earn roughly $80,000 in starting salary, plus benefits, pension payments, and overtime — cash-strapped Oakland cannot afford to hire enough officers to get back to 2009 staffing levels without a complete turnaround of the local economy, higher taxes on city residents, gutting other vital municipal services, or rewriting the police union's contract.

During the past year, there has been much focus on whether US District Judge Thelton Henderson will place OPD under control of a court-appointed special receiver as a result of the department's failure to comply with decade-long reform efforts stemming from The Riders scandal.

OPD's Internal Affairs investigations into misconduct allegations and the inability to track and deal with problem officers have been at the heart of the stagnated reform efforts. But the department's failure to lower Oakland's crime rate is due to a litany of factors that fall outside the confines of court oversight and have gone unaddressed by city leaders.

For example, field supervisors and line officers alike complain about a lack of strong leadership in OPD. They also complain about a reactive department culture that does not have the resources or the institutional support to conduct systematic investigations into violent crime. In addition, OPD's crime lab has not been a top priority of the department for at least a decade, despite repeated calls by the Alameda County Civil Grand Jury for a consolidated countywide crime lab. That proposal was rejected repeatedly by neighboring police departments earlier this fall, leaving Oakland with several years' worth of backlogged evidence and no long-term solution in sight.

Moreover, OPD's failure to quickly analyze forensic evidence, including fingerprints, DNA, and shell casings, has prompted homicide investigators to rely heavily on eyewitness identifications and statements and suspect confessions, all of which are coming under increasing scrutiny by national crime experts. According to The Innocence Project, false confessions played a major role in a quarter of the 301 convictions that have been overturned with DNA evidence nationwide since 1989.

The staffing shortage is a critical reason why OPD is fighting a Sisyphean battle against Oakland's crime rate. But the department's failure to solve violent crimes and meet even the most basic standards of contemporary policing contribute to the citizenry's plummeting level of confidence in their most highly-paid — and overworked — civil servants.

OPD's inability to effectively investigate and solve violent crime is due not only to the lack of funding and staff for its crime lab, but also because of the department's decision over the years to not focus on its clearance rates. In June, the Alameda County Civil Grand Jury noted that more than 1,000 sexual assault and homicide cases in Oakland had yet to be analyzed. More damningly, the grand jury heard testimony that the crime lab had 330 unsolved homicides and 650 unsolved sexual assaults where evidence "directly related to the crime" had yet to be tested.

Despite the Grand Jury's recommendation (for the second time since 2000) that Alameda County law enforcement should create a consolidated crime lab to make more resources available to law enforcement and help reduce Oakland's evidence backlog, the cards appear to be stacked against such a solution. "Without political support for consolidation and political leadership supporting the establishment of consistent and reliable funding, any endeavor to implement regional consolidation of crime lab services will remain an unfulfilled vision," Albany police Chief Mike McQuiston, the head of the Alameda County Chiefs of Police and Sheriffs Association, wrote in response to the Grand Jury's findings.

McQuiston acknowledged that the consolidation of crime labs in the county would be beneficial, but he rejected the Grand Jury's recommendation, saying the "costs would certainly be vast and prohibitive in the current financial environment." In short, the rest of Alameda County law enforcement does not see a fiscal or political imperative to assist residents of Oakland, the region's largest city and biggest economic engine, which is in the midst of a public safety crisis that shows no signs of abating.

At the same time, internal department documents indicate that OPD does not systematically submit firearms evidence to national databases, nor does it trace weapons back to their points of origin. A civilian contractor for the Bureau of Alcohol, Tobacco, Firearms, and Explosives, who conducted trace work on seized weapons for OPD, was let go in August 2011 when federal funds for his position expired. Trace work on weapons is currently only submitted to the ATF on a case-by-case basis.

In addition, examinations of fingerprints found at crime scenes in Oakland decreased by 40 percent in 2011, and there is a backlog of 1,118 prints awaiting analysis by the crime lab. Similarly, there is a massive backlog of untested firearms evidence. At the end of 2011, OPD's crime lab had 1,871 such requests pending. Moreover, Criminalistics Division Manager Mary Gibbons stated in her March 1, 2012 annual report that she intended to eliminate all pending requests unrelated to murder cases that were more than three years old.

Evidence backlogs also seriously hamper case work and place additional burdens on investigators to elicit confessions or secure eyewitness identifications of suspects to ensure charges stand up in open court.

The civil grand jury also criticized OPD's crime lab for the lack of a case-tracking database, as well as the city's constant reliance on grant funding to plug the budgetary holes. In mid-September, OPD received a $408,000 one-time federal grant from the US Department of Justice to hire two additional crime lab staffers specializing in forensic biology for 18 months. According to a report by Police Chief Howard Jordan, the two technicians would help reduce the crime lab's backlog by 170 cases and decrease the turnaround time on analyzing biological evidence to less than 100 days. However, OPD estimated that it needs thirteen more staffers and $1.3 million to fully staff the crime lab commensurate to the current workload.


According to Oakland police Captain Johnny Davis, who is in charge of the Criminal Investigations Division, homicide investigators are averaging thirty open cases annually, up from 13.7 five years ago. In 2008, the Chauncey Bailey Project found that homicide investigators in the rest of California's ten largest cities had an average annual caseload of five open murders. "It's very draining," Davis said of his investigators' workload. "It's not uncommon now for us to work a case for 48 hours straight."

OPD's homicide clearance rate fell from 41 percent in 2006-2007 to just 29 percent in 2011. Davis said the 2012 clearance rate on homicides is 40 percent, but the Express could not independently verify that figure.

Regardless, OPD's clearance rate is startlingly low in comparison to state and national rates, and results in far fewer arrests and prosecutions of homicide suspects. "It's pretty stark because these are people who get away with murder, literally," said O'Donnell, the former NYPD lieutenant and professor of criminology at the City of New York-John Jay. O'Donnell also added that homicide clearance rates are often overlooked as a key performance measure by elected officials, who are responsible for ensuring that the police are doing their jobs effectively.

The trial of Evaristo Toscano and Hector Vilchis for Samier Ayesh's murder represents the pitfalls of OPD's crime lab problems and lack of evidence gathering and analysis, and the department's over-reliance on eyewitness statements and identification. "Memory isn't mechanical, it isn't a videotape," explained David Faigman, a professor at UC Hastings College of the Law, noting the difference between forensic evidence and witness testimony.

Sergeant Fleming and his fellow investigators not only collected no forensic evidence from the Samier Ayesh crime scene, but they also did not find a firearm when they searched Toscano and Vilchis' separate residences. Both men were charged for murder based on a statement given by Awad Ayesh on March 2, 2011 where he said there were two men shooting at him and his brothers on the night of June 10, 2010. However, an audio recording of the gunshots from that night was captured by ShotSpotter, a gunshot-location program used by OPD since 2006, and ShotSpotter recorded four shots, all of them the same caliber. The ShotSpotter evidence was not included in the case presented by prosecutor Autrey James. Vilchis' attorney, Yolanda Huang, procured the gunshot detection data on her own and introduced it in court on October 23.

The Ayesh brothers gave statements to Fleming on three occasions, but provided no firm descriptions of the gunmen until their third statement. On March 2, 2011, police showed them two photo arrays of six individuals, including Vilchis. While looking at the arrays that included Vilchis — both of which were later lost by Sergeant Fleming — Awad Ayesh picked out two individuals who he believed could have been the heavyset Latino his brother Samey Ayesh said was firing at them. Vilchis, who was arrested on February 28, 2011, based on a statement by Evaristo Toscano that put him at the crime scene, was never identified positively by the Ayesh brothers until after they were shown his photo in a lineup in March. Then, after Fleming lost the photo lineups, the murder charges brought against Vilchis were based largely on the statement of Toscano that put Vilchis at the scene of the shooting.

When he took the witness stand during an October 1 evidentiary hearing, Fleming was asked by defense attorney Yolanda Huang why he didn't place the two photo lineups into the property section. "Normally — since I've been in homicide — what we normally do is everything gets placed in a case package," Fleming responded. "At that time I didn't place the photo lineups into property after I finished them, ma'am, no."

Fleming's failure to submit the video recording of the August 6, 2010 interviews with the Ayesh brothers was also a violation of OPD's Bureau of Investigations Policy 080-4, which states that investigators must record video and audio interviews with all suspects. Per policy, one copy of the recording is to be kept in the case file, and another is to be filed into the property section at the end of the shift during which the interview was conducted.

When asked at the same hearing about an explanation for the missing video recording of an August 6, 2010 interview with the Ayesh brothers, Fleming replied that he didn't follow policy because he was pressed for time. "I have a high caseload, multiple cases I'm investigating at one time, and I just didn't make them at the proper time on that particular incident," Fleming told the court.

Fleming's case notes, which were signed by Captain Brian Medeiros, who was then a lieutenant in charge of homicide investigations at OPD, state that he submitted video recordings of the interviews to the property section on April 11, 2011. The notes do not elucidate which recordings were filed into evidence.

While there is no indication that Sergeant Fleming intentionally misplaced the photo arrays and the recording of the August 6, 2010 interview, experts say the absence of such evidence casts doubt on the underlying basis for charging a defendant. "If procedure breaks down completely, as it did during this case," said Hastings professor Faigman, "one would naturally be suspicious about whether the underlying witness statement is valid."


In order to plug the gaps created by chronic understaffing and the misallocation of resources, OPD has enlisted the aid of federal law enforcement to conduct long-term probes and operations targeting gang activity and firearms trafficking. These cases represent the best police work done by OPD, but would be impossible without federal assistance with wiretapping equipment, cash, additional staffing, and trace-evidence work on weapons. "These enforcement collaborations are essential for the Department due to OPD's fiscal restraints and insufficient staffing," read Chief Jordan's September 11, 2012 report to the Oakland City Council.

A combined operation in 2010 between OPD and federal law enforcement targeting weapons trafficking is one of the best examples of how federal assistance with staffing, technical expertise, and financial resources brings out the best in Oakland policing. In January 2010, Drug Enforcement Administration agents based in Oakland learned from an informant about a young West Oakland Norteño — Luis Cardenas-Morfin — who was making a name for himself in town by selling heroin, crystal methamphetamine, and guns.

Then 21 years old, Cardenas-Morfin was already known to OPD for his part in the January 11, 2009 shooting of Abraham Gomez in front of Comalapa Restaurant on 7th and Chester streets. According to police reports, Cardenas-Morfin shot Gomez in the leg in front of the restaurant after calling Gomez a "scrap," a derogatory term used by Norteños for members of the rival Sureño gang. Gomez picked out Cardenas-Morfin as the shooter in a photo lineup shown to him by Officer Robert Trevino. Cardenas-Morfin pled guilty to the shooting and was sentenced to five years' probation.

The DEA opened an investigation into Cardenas-Morfin's activities and brought in Oakland Police Officer Eric Milina, a nineteen-year veteran who spent fifteen years in the city's Fruitvale district as a patrol officer and then with OPD's gang task force. On February 3, 2011, Milina was introduced to Cardenas-Morfin by a DEA-paid confidential informant. Milina and the DEA informant posed as mid-level dealers in drugs and firearms who were looking for a new supply line.

After the initial meeting, Milina met with Cardenas-Morfin several times. Using federal money, Milina worked his way up from deals for one or two ounces of crystal meth and heroin to purchasing firearms from the Norteño in so-called "controlled buys," which were recorded by DEA agents and OPD officers monitoring the transactions through hidden microphones.

In an interview, Officer Milina told me that he was struck by Cardenas-Morfin's efficiency, punctuality, and business-like approach to the deals. "He was organized, squared away, timely, which is unusual for drug dealers. He was level-headed and articulate," said Milina. "For a young man like that, if he'd put his energy into something good, he'd have been successful."

During the buys, Milina bought 19 ounces of high-purity crystal meth, two ounces of low-grade black tar heroin, and eighteen firearms from Cardenas-Morfin for $47,935, all of which came from federal anti-drug funds. The guns sold to the undercover officer included six semi-automatic pistols, two pistols, seven assault weapons (two AR-15s, two AK-47s, a Ruger mini-M14 rifle, a MAC-10 automatic pistol, and a 90-round drum magazine for the AR-15), and a Mossberg 12-gauge shotgun. "When he brought the guns in, he'd sell them pretty quick. I'm sure he had a pretty good profit margin on the weapons," said Milina.

Court documents detail Cardenas-Morfin telling Milina that he had two or three steady customers for firearms in San Francisco and Oakland. In one conversation with Milina, Cardenas-Morfin indicated that he had brought thirty firearms with him from his last trip out of state and already sold twenty of them. "It was an eye-opening experience to see how easy it is to buy high-caliber weapons, and where the supply comes from," Milina told me.

Of the weapons Milina purchased from the Norteño, four were traced by ATF personnel to Nevada, one to Vermont, six to Arizona (including two AK-47 assault rifles), one to Georgia, and two to Southern California. "In Nevada, if you have a state-issued driver's license, you can show it to a vendor at a gun show and walk away with a weapon. And Reno's only four hours away," Milina noted.

However, OPD's ability to trace weapons was severely curtailed by the ATF's decision to cut the weapons-tracing contractor in 2011. "Now guns are traced on an individual base — it's not systematic like it was with that ATF contractor," said Milina. The ATF contractor "was helpful, it was definitely an asset."

After being arrested, Cardenas-Morfin pled guilty to felony charges on December 22, 2011. The 23-year-old will remain incarcerated at the Federal Correctional Institution in Lompoc until August 2020.

Officer Milina acknowledged that the sting operation, for which he was awarded a departmental commendation, put only a small dent in Oakland's brisk traffic in illegal firearms. Noting the devastating impact that 7.62- and 0.223-millimeter rounds fired by the AR-15 and AK-47 rifles he purchased possess (both calibers are capable of ripping through dwellings and vehicles), Milina still believes his risky, months-long undercover stint had an impact: "Any time you can stop a gun supplier, it's worth it," he said. "Even if it stops one murder, saves one life, it's worth it."


Fit's nor

The one aspect of OPD's troubled operations that made its way into the 2012 municipal elections was the dearth of police officers to patrol the city. Not counting cops on medical leave, assigned as community policing "problem-solving officers," or tasked with patrolling near city schools, OPD has only 327 of the department's 627 officers to divide among its patrol division, criminal investigations, internal affairs, special operations, and training unit. As a result, several beats throughout the city are open, and response times to crimes are alarmingly high.

In 2009, officers responded to priority-one calls for service (i.e., incidents where a violent crime had just taken place or was still in progress) within 14.8 minutes on average, double the response times from comparable cities like Sacramento, Anaheim, San Francisco, and Fresno.

Short-staffing and instability within OPD's command structure — there have been five police chiefs within the past thirteen years — along with priorities that appear to shift along with the political winds, have demoralized rank-and-file officers and made the department a less effective organization. An OPD supervisor who is still with the department said the command structure is not geared to proactively combat violent crime. "OPD is an entirely reactive agency," said the supervisor, who wished to remain anonymous. "Everything in this police department is political — what we do is entirely dependent on the lead [newspaper] headlines."

Following the layoffs of eighty cops in July 2010, then-Police Chief Anthony Batts decided to do away with several specialized units, including six Crime Reduction Teams, or CRTs, that were assigned to specific areas of the city with the task of investigating and reducing violent and drug-related crime. Each composed of six officers and one sergeant, CRTs were created in the mid-2000s.

Much of the work of the CRTs focused on gangs and aggressive, proactive policing. Police depositions filed in support of the city's two gang injunctions in North Oakland and Fruitvale included statements from several CRT officers about arrests and contacts with the individuals listed as active gang members.

CRT officers, however, were also at the heart of some of OPD's most controversial moments in the past decade: several traffic stops by CRT officers are included in a large civil rights lawsuit over a now-discontinued OPD policy permitting public strip searches. The September 20, 2007 officer-involved shooting of Gary King Jr. by Sergeant Patrick Gonzales was a result of the officer mistaking King for a murder suspect. Gonzales was the supervising sergeant for a North Oakland CRT at the time. In 2010, Oakland paid $1.5 million to the King family to settle a wrongful death lawsuit, making it the most expensive officer-involved shooting in the city's recent history.

Earlier this year, OPD reassigned 22 of 57 officers assigned to specific neighborhoods as "problem-solving officers (PSOs)," dividing them into two CRTs responsible for tackling violent crime in East and West Oakland. However, the transfer of PSOs who are intimately familiar with their beat has angered some residents of wealthier neighborhoods in the hills, which have experienced increases in property crimes and robberies.

Until the recent reintroduction of CRTs, OPD's gangs and guns task force of one sergeant and eight officers was the department's only unit dedicated to the proactive police work of long-term surveillance, intelligence gathering, parole searches, narcotics buys, and taking firearms off the streets. Formed in the mid-2000s as the Tactical Enforcement Task Force, it has an extremely heavy workload. In 2011, its members conducted 281 parole searches, 488 probation searches, 631 surveillance operations, and served 26 search warrants, resulting in 223 arrests. Of those, 31 arrests were of murder suspects, 20 were for robbery suspects, and 93 individuals were taken into custody for firearms-related offenses. In all, the task force seized 88 handguns, 18 rifles, and $79,304 in cash. For the year to date, OPD has seized more than 750 firearms.

But while the specialized task force produces numbers and arrests, its sheer workload detracts from its ability to engage in long-term investigations and build cases against organized street gangs. "They're not police, they're firemen," the current OPD supervisor said of the members of the gangs and guns task force and the reformed CRTs. "They're running from one end of the city to another: On Monday, they could be on a stakeout in East Oakland, the next day they're serving warrants in the West."

"Cops have lost faith in the command staff. Accountability stops at certain levels," said the current OPD supervisor. "If you have no leadership, we're gonna do whatever instinct tells us to do."


It's not clear what the future holds for OPD: Barring a dramatic turnaround in the economic fortunes of Oakland or California, it may be impossible to procure funding to fully staff the department at the current pay structure without stripping other core city services to the bone. The resistance of other Alameda County law enforcement to creating a consolidated crime lab leaves the city without a long-term solution to the massive evidentiary backlog. The doubts cast on the department's future by the impending receivership proceedings mean the command structure will be preoccupied by Judge Henderson's ruling until at least the beginning of 2013. What's more, the consent decree has never covered the troubled Criminal Investigations Division, and it remains unclear whether a federally appointed receiver would go beyond the current limits of reforms to address other problems rife within OPD.

The few bright spots that Oakland has concern the police department's collaboration with outside agencies. Federal assistance with long-term investigation appears to have become the norm — but it has yet to decrease the body count in Oakland's flatland neighborhoods. The much-touted return of Project Ceasefire after a previous incarnation was derailed by the city's gang injunctions (see "Oakland's Other Gang Program," 10/5/11) is in its infancy, but will struggle if it does not provide meaningful employment to offer young men and women involved in the street life.

Experimental programs such as restorative justice have attracted attention in Oakland's public schools, but the city has yet to try alternatives to incarceration such as San Francisco's drug and neighborhood courts. The status quo is untenable: Young men and women, overwhelmingly black and Latino, are dying in droves, and OPD's ability to bring justice to the victims of crime is increasingly compromised by a financial house of cards and the same internal dysfunction that plunged it into federal oversight almost a decade ago.

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