The Oakland Police Department and City Administrator Dan Lindheim fired four police officers earlier this year for falsifying search warrant affidavits. The cops' actions resulted in at least a dozen felony drug convictions being overturned and the release of numerous suspects who were wrongly convicted. Although the terminations were supposed to have rooted out the department's problem officers and ended the search warrant scandal, two embarrassing legal cases in recent weeks raise serious questions as to whether the city fired enough cops.
The cases involved two officers, Gregory Loud and Alan Leal, who were recommended for termination by Oakland's internal affairs unit for falsifying search warrant affidavits late last year, but were allowed to keep their positions, according to Alameda County court records. In fact, the cops were still in their posts as of late last week. Both are known as Measure Y officers, named after the 2004 community policing initiative, although their future effectiveness in those jobs is now highly doubtful.
Loud and Leal's actions were brought to light by the Alameda County Public Defender's Office, which has painstakingly reviewed convictions of and charges filed against defendants based on bogus Oakland Police Department search warrants. Like the four officers who were fired, Loud and Leal had said in sworn affidavits that alleged illegal drugs that were supposedly purchased from the suspects had been tested by the department's crime lab when they had not. Judges then issued search warrants based on the officers' false claims.
None of the officers disputed the fact that their affidavits were false; instead they maintained that their superiors had trained them to use search warrant "templates" that stated that alleged drugs had been tested when they had not. The officers maintained that it had been department policy for the crime lab to call them only if the drugs came back negative. And because the crime lab didn't call, they assumed wrongly that the drugs tested positive.
But the recent cases litigated by Assistant Public Defender Andrew Steckler and his legal team suggest that Loud and Leal may have done more than just falsify drug test information. Of the two, Loud's case appears to be the more serious. In that case, Steckler requested that Alameda County Superior Court Judge Thomas Reardon conduct a private interview with Loud to determine whether other aspects of an affidavit he filed also were false. "When a police officer lies about drugs being tested, as a defense attorney, I question everything in the warrant," Steckler explained in an interview.
According to court records, Loud's search warrant affidavit was straightforward. In it, he claimed that a confidential informant had come to him in early 2007 and told him that he knew of a drug house on 78th Avenue in East Oakland. As a "problem-solving officer" under Measure Y, it was Loud's responsibility to clean up East Oakland crack houses. Loud stated in his affidavit that he decided to give the informant petty cash from police department coffers and then follow the informant to the alleged drug house. Loud said he watched the informant go into the house and then come out later with a Baggie of "white rock of suspected crack cocaine."
After obtaining the search warrant, Loud and other officers, including Karla Rush, who was fired by the department for also falsifying search warrant affidavits, went back to the drug house and arrested some of the occupants. Among them was Nichole Pettway, a 43-year-old with a history of identity theft and drug possession. Although Pettway had no coke on her and the alleged drugs were found on one of the other occupants, she later pleaded no contest to a drug charge and was sentenced to sixteen months in state prison. In fact, by the time Steckler asked Judge Reardon to interview Loud in August of this year, Pettway had already finished her prison stint.
Reardon, who is known as a fairly conservative judge, agreed to conduct the private interview, and then when it was over, he did something extraordinary. The judge ordered Loud to reveal the identity of his confidential informant to Pettway's attorney, Steckler. It was a remarkable move, and it clearly showed that the judge didn't believe what the cop had told him during their closed-door session. According to some criminal defense experts, it also raised questions as to whether the judge believed Loud made up the entire story about the drug house and invented the confidential informant.
What made the judge's decision so uncommon is that Reardon could have taken several actions short of ordering Loud to reveal his confidential informant. It is extremely rare for judges to require full disclosure because cops protect their sources for a good reason — if their names become known, their lives could be put in grave danger. Reardon, for example, could have ordered Loud to bring his informant in for his own private interview, thereby keeping the source's identity secret. But, the judge went much farther than that.
Steckler declined to comment on Reardon's decision. But noted East Bay defense attorney Dan Horowitz, who is not involved in the case but knows the judge well, called his decision "highly unusual." "Reardon is no bleeding-heart liberal; he's the type of judge who would protect confidential informants," Horowitz said. "He must have really had questions. It sounds like he must have thought that it was made up."
Loud did not return phone calls seeking comment for this story, nor did prosecutor Kevin Wong, who also was in on the meeting between the judge and the cop. Not long after Reardon issued his order, Wong agreed to overturn Pettway's conviction and drop all charges against her rather than force Loud to reveal his source — or his lack of one. It should be noted that Wong apparently acted ethically in the search warrant cases. It also should be noted that Pettway will never get back the sixteen months she spent in prison on a wrongful conviction, although that appears to have been no fault of anyone other than Loud.
So if Loud possibly invented a confidential informant and a fake drug buy, how did he keep his job when other cops lost theirs? It's hard to say because Lindheim didn't return calls seeking comment. But this much is known, according to court records: OPD internal affairs originally recommended that eleven officers be fired, including Loud. But in the end, Lindheim only terminated four of them.
It's unclear whether Lindheim's decision was solely his own, or came as a recommendation from Police Chief Wayne Tucker or a hearing officer who reviewed the cases. It's also entirely possible that Judge Reardon was able to get to the truth while the department and the city could not because Loud was able to have his attorney present in those situations — but not with the judge. As for internal affairs, Sean Whent, acting captain of the unit, also declined to comment on Loud's case, citing confidential personnel issues. However, Whent did say that the internal affairs investigation "examined whether confidential informants existed."
Alex Katz, spokesman for City Attorney John Russo, went a bit further, saying: "IA did an investigation of confidential informants. They looked at the issue very thoroughly. But there was not enough information to allow the city to fire police officers over it."
As for Officer Leal, his sin (besides falsifying drug test results) was one of omission, rather than commission. In a case similar to the Pettway matter, Leal failed to disclose to a judge that his informant held a grudge against the people in an alleged drug house that he and other officers later raided, Steckler said. Ultimately, a suspect, Edward Chrisen, who was in the house at the time, was convicted of selling pot and sentenced to three years probation.
In an interview, Leal told Full Disclosure that the whole thing was just "a mix-up." Last month Judge Philip Sarkisian agreed to toss the officer's search warrant, the case against Chrisen was overturned, and prosecutor Wong dropped all charges.
So what does it all mean? Clearly, the city needs to get to the bottom of the Loud case. Even if Loud and Leal are allowed to keep their jobs, it's hard to see how they can be effective, especially as Measure Y officers. Those positions require officers to write search warrants and make arrests. But any defense attorney worth his or her salt will absolutely destroy the officers' credibility on the stand because of their history of falsifying sworn affidavits.
Finally, one of the fired officers, Karla Rush, sued the city last week, claiming that she was terminated, and the others were not, because of her gender. She said she was the de facto secretary of an all-male squad who ended up writing more search warrant affidavits than the others because she was the only officer who could type. But it's unclear whether Rush's civil case will be bolstered by the revelations about Loud and Leal. While it's true that they were not fired and maybe should have been, it's not clear to what extent Lindheim and Tucker knew the details of their cases when they decided to keep them on the force.
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