How to Retry the Riders: Quickly. 

The prosecutor who lost the case in the first police misconduct trial has some advice for his successor on how to keep the jury diverse.

The infamous case of the Riders, the four West Oakland cops accused of beating and planting evidence on dozens of young African-American men over the course of five years, is the East Bay morality play of our time. For many local black residents, the accusations seemed to confirm their daily experience with police departments in Oakland and elsewhere. For supporters of the four officers, the trial was simply a product of the cowardice of an urban Democratic machine willing to hang hardworking cops out to dry just to satisfy its vocal constituents.

The defense team led by attorney Michael Rains had been known to accomplish miracles long before it signed on for this case. But even so, almost everyone was stunned by how he and his colleagues in the Riders case managed to overcome a mountain of evidence that included the testimony of a whistle-blowing cop. After ten months of testimony -- the longest trial in Alameda County history -- and another 56 days of deliberations, the jury deadlocked on 27 charges in late September, setting the stage for a second, grueling trial.

Deputy District Attorney David Hollister had always planned to leave town after the Riders trial even if it hadn't gone south. He had lined up a gig with the Plumas County district attorney's office, where he hopes to spend the remainder of his career in peace and quiet. Now, the 37-year-old who prosecuted the Riders has explained how Rains outsmarted him and what the next prosecutor must do if he wants to put the rogue cops in jail.

According to Hollister, Rains and his colleagues put on a sort of bait-and-switch defense, in which they declared their intention to make one argument, but wound up presenting an entirely different one. The defense attorneys' opening statements made countless references to the grim realities of West Oakland, and claimed that this context was crucial to understanding the tough approach to crime their clients had to take. They argued that Mayor Jerry Brown and Police Chief Richard Word had put enormous pressure on their clients to crack down on crime and deliver results. "West Oakland was being overwhelmed by crime," Rains told the jury, according to the San Francisco Chronicle. "You will see the context that these officers were operating in." But such extenuating factors were only relevant if the Riders actually crossed the line and kicked some ass to make the streets safer.

In fact, Rider Chuck Mabanag implicitly repudiated this line of reasoning when he testified that he did nothing wrong. If the Riders did everything by the book, then there's no need to put their behavior in any context, Hollister argues. So why did Rains and his colleagues spend so much time presenting mitigating evidence? Why did they call Chief Word to the stand and ask him about crime-fighting directives issued by the city council? Why did they spend weeks talking about get-tough initiatives such as Project SANE, if not to explain why their clients resorted to extralegal means? Hollister claims they did it just to eat up time. "It was all smoke, a distraction for the jury that caused time to be consumed," he says. In addition, Hollister claims that the defense team insisted on individually questioning each potential juror -- a process virtually unheard of outside capital murder cases and one that takes enormous amounts of time.

But why did Rains choose to burn so much time? Hollister says he did it to keep blacks off the jury. If Rains and his colleagues could convince the judge that their defense required months of testimony, then only people who could afford to spend a year at trial could possibly serve on the jury. And that, Hollister claims, conveniently excluded almost every potential nonwhite juror. "Our pool became middle-management, middle-aged people," Hollister says. "We started out with 680 potential jurors. Before challenges, it was down to 113. Most who couldn't serve were younger folks, and the ethnic diversity was also lost. We lost that coming out of the gate. That's important." If indeed this was Rains' strategy, it worked brilliantly. In the end, not a single African American served on the jury.

Rains, however, has a drastically different version of events. He claims that he never intended to drag out the case, and that every argument he presented was entirely legitimate. He even claims that the jury was biased against his clients from the beginning. "To say that we had a strategy to drag the case out is far-fetched," he says. "This was infamy, this case. We hated it, we didn't want to be there. But we didn't want to sacrifice the defense of our clients based on a superficial cross-examination of the witnesses. And we based that cross on how much they wanted to lie. ... We didn't drag this case out, but I'll be goddamned if we're gonna lay down to a pack of lies."

Regardless of what the real truth is, Hollister has a few words of advice for the prosecutor now charged with conducting the second trial: move to exclude any arguments about how the cops felt pressure to crack down on crime. The way Hollister now sees it, you can't have it both ways. Either the cops did nothing wrong, or they had to resort to illegal methods to satisfy political demands to reduce crime. Arguing both defenses only drags out the case and precludes jurors who can't sit through a lengthy trial. "It needs to be clear to the judge at the outset that excessive questioning of witnesses was merely to drag the trial out," Hollister says. "Before the jury was impaneled, I would try to make the court understand what defense is relevant and what is irrelevant."

Hollister's successor, Deputy District Attorney Terry Wiley, declined to comment on the upcoming case. But should he manage to shorten the trial, at least one group probably would be pleased: the thousands of ordinary cops throughout California who have to help pay for the Riders' defense. Rains says that he and his colleagues ran up roughly $2 million in bills; meanwhile, the DA's office couldn't have spent more than $300,000. And since Wiley's office plans to retry the Riders this summer, Rains and his colleagues might well spend another $2 million before it is all over. As in the first trial, this money will be drawn from a statewide legal defense fund overseen by the Peace Officers Research Association of California. The fund serves as a misconduct insurance plan that all cops pay into each month. Because the Riders have drained so much of this fund lately, Rains predicts that all Oakland cops will have to shell out a bigger piece of their salary as compensation.

Bob Valladon, the president of the Oakland Police Officers Association, claims that if the trustees jack up Oakland's rates, he'll cut union services rather than raise his members' dues. But thanks to the police department's lengthy history of misconduct litigation, Oakland cops already pay among the highest rates in California. OPOA Treasurer Tom Viglienzone says Oakland cops pay $432 a year for misconduct insurance, compared with the lowest rate of $108 a year. That's the price of being an Oakland cop, and unless the second Riders trial is a lot shorter than the first one, it's likely to get even higher.


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