Getting Away with Murder 

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

Page 3 of 6

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.

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