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.
