A critical piece of Palo Alto history that should not be forgotten

The criminal case against Palo Alto officers Craig Lee and Michael Kan

May 3, 2005

Dear Mr. George Kennedy & Ms. Karyn Sinunu:

I am writing to you to request that your office retry the criminal case against Palo Alto police officers Michael Kan and Craig Lee. I would like to make some observations and comments regarding the recently completed trial in this matter wherein the jury ultimately hung 8 to 4 for guilty. I would then like to comment on the importance of this case being retried. I hope you will consider all of my comments in the constructive manner in which they are intended.

Comments re the recently completed trial of Defendants Kan & Lee

First I think it is important to acknowledge the fine work performed during the course of all of the proceedings in this matter by Deputy District Attorney Peter Waite. Not only was his preparation and presentation of the case outstanding, but it was apparent that his confidence in the strength of the case grew as the matter proceeded. No doubt the case was not tried without some mistakes and at least one questionable judgment call, but, given all of the many pressures and roles being balanced, it was an outstanding job. By the time the case went to the jury it was my observation/opinion that Mr. Waite had out performed the very talented attorneys for the defendants. (I sat through the entire PX and trial in this matter.)

From the perspective of a former public defender and trial lawyer it was clear to me that Mr. Waite and his investigative team (Sgt. Mike Denson and Sgt. Ron Watson from the PAPD) left few stones unturned in an effort to assure that the prosecution in this matter was both professionally managed and aggressively pursued.

I had no sense during the trial of this matter, despite the obvious political pressures and ramifications for the entire prosecution team, that at anytime that the prosecution team treated this case lightly or in any fashion differently than any other serious felony matter. Finally, Mr. Waite, in an example that more public servants should model, made himself available to members of the public who had endless questions for and observations to share with him.

During the jury selection process in this case Mr. Waite’s questions and the nature of the responses by prospective jurors re the role of race, racial profiling, the right of citizens to be free of undue and unwarranted harassment by the police etc., were both fascinating and instructive re the current public mood towards law enforcement. Had the voir dire process been taped it would have made a provocative documentary on the current status of the relationship between law enforcement and the community. As indicted by the responses during voir dire, as it currently stands, the relationship appears tenuous at best.

There were numerous jurors who expressed just barely restrained anger re the recent killing of Bic Cau Tran by San Jose police officer Chad Marshall and similarly deep concern re other recent high profile killings by members of the SJPD.

What came across strongest from the jury selection process is that both the depth and width of anger and concern over misconduct by law enforcement in this county is much greater than reflected by the mainstream media in Santa Clara County. Whereas the conventional wisdom has been that police cases are hard to successfully prosecute in this county the current dynamically shifting demographics, combined with a well informed citizenry re police misconduct issues, may well have changed the landscape permanently. Given the above, it would appear that police prosecutions are much more like to be successful in this county now and in the future.

During the course of the jury selection the defense exercised a peremptory challenge against the one black female who made it into the jury box. Given the quality of her responses to the questions posed by attorneys for both sides it was clear that this prospective juror was totally free of bias for either side.

Despite the fact that Mr. Waite made an appropriate Batson/Wheeler objection that the defense, specifically attorney Harry Stern, had exercised the challenge in a in a racially discriminatory fashion the judge, Andrea Bryan, declined to ask defense council for a showing of specific bias (to establish a race–neutral reasons for the strike) or to find a prima facie case for requiring a response by the defense. The judge should have reseated the juror in the presence of the entire panel as a clear message to the defense that the racist removal of a fair minded juror would not be tolerated. (Case law clearly supports the notion that one race based peremptory challenge is sufficient to trigger the remedies contemplated by Batson/Wheeler and its descendants.)

Given that only three African-Americans were in the initial jury panel of approximately 160 perspective jurors called for in this case, there is little doubt that the discriminatory strike of the one black female to make it into the jury box denied the people a jury made up of a cross-section of the community and thus a fair trial.

The following quotes serve as a reminder of the impact of a discriminatory challenge based on race in the context of this case: … “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.” Batson V. Kentucky, 476 U.S, at 77 (1986).

“The need for public confidence is especially high in cases involving race-related crimes. In such cases, emotions in the affected community will inevitably be heated and volatile. Public confidence in the integrity of the criminal justice system is essential for preserving community peace in trials involving race related crimes.” (Citations omitted). Finally, as to Judge Bryan’s role in denying the community a fair trial the following is pertinent: “Be it at the hands of the state or the defense, if a court allows the juror to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice—our citizens’ ” (citations omitted).

In addition to the failure of Judge Andrea Bryan to perform her constitutional responsibility to ensure the selection of a fair jury in this matter it was apparent that the court allowed the atmosphere surrounding the trial to favor the defense. Not only did the court appear to bend over backwards to rule in favor of the defense on issues where you would normally not expect such favorable rulings, but the court personnel, including the bailiffs, routinely acted with favoritism to members of law enforcement. This included providing preferential seating in the courtroom to members of law enforcement, to allowing outbursts by law enforcement spectators to go unpunished while, at the same time, closely monitoring the conduct of non-law enforcement citizens in the courtroom to the point of a constitutional chill on access.

Despite all of the efforts by the court and its personnel to tamper with the jury selection, evidentiary rulings, deny equal access to the courtroom to the public versus members of law enforcement, all in a thinly veiled attempt to direct a verdict of acquittal, 8 members of the community still rendered a verdict of guilty refusing, in the greatest tradition of independent jurors, to buckle under the weight of the intimidating atmosphere allowed to exist by Judge Andrea Bryan. All of this speaks volumes re the strength of the evidence in this case and the fine job done by the prosecution team.

Despite the fact that only 8 of the 12 jurors in this case voted for guilty the verdict was still one of historic proportions in Santa Clara County. I know of no other case in recent Santa Clara County history where 8 jurors have voted to convict police officers for the beating of an African-American citizen. This result calls out for a retrial.

Conclusion re why case should be retried.

Community sentiment: I have enclosed an editorial from the Palo Alto Daily News, Accused officers should be retried, April 20, 2005, outlining some of the reasons why this case should be retried and encouraging your office to do so, both in the interest of the Palo Alto Police Department and the Community at large.

Given the statements attributed to Karyn Sinunu in the San Jose Mercury News (enclosed), (April 19, 2005), that the district attorney usually retries hung juries and given that in this case 8 citizens voted for guilty under the difficult conditions described in the first section of this letter, failure to do so in this case would feed into the perception that there is two standards of justice in this community, one for the ordinary citizen and one for police officers.

Given comments in a recent article in The Recorder, April 27, 2005, that there will be a chase for endorsements by police and law enforcement groups by the presumed candidates for District Attorney in 2006, and given Ms. Sinunu’s apparent intent to run for this position, failure to retry this case might well be seen as decision based on political expediency rather than the merits of retying this case.

It is clear that this case would likely not have come to light but for the courageous act of a few “whistle blowing” members of the PAPD willing to break down the traditional “code of silence” that so perniciously permeates much of law enforcement in this community. By the jury’s verdict in this case the community has spoken: it is time, once and for all, to send the message that the so-called “code of silence” will not longer be tolerated by those we entrust with the awesome power of the badge. Failure to retry this case would discourage officers in the future to speak out against rogue officers in their ranks and, as result, put the public at risk of more unwarranted beatings and deaths.

Given all of the above, the strength of the evidence presented in the first trial, the resources and efforts expended by the prosecution, the strong likelihood of a conviction beyond a reasonable doubt at a second trial, the efforts of the trial judge to sabotage the prosecution’s case in the first trial, and the strong public support for a retrial in this matter it is my request that you exercise your prosecutorial discretion in favor of a retrial in this case.

Post Script:

This letter requesting a retrial of Kan & Lee was originally sent out on May 3, 2005. Ultimately the DA declined to retry the case against officers Kan & Lee. In a miscarriage of justice Kan & Lee were allowed to plead guilty to one count each of disturbing the peace, as an infraction, with a maximum punishment of a $250 fine.

Santa Clara County District Attorney Jeff Rosen refuses to investigate charges of rape

Victim(s) statement to the Palo Alto Police

Victim(s) Maria Auxiliadora Moncada Flores, y Melissa Caceres Auxiliadora Moncada de Masatepe Nicaragua statement to the Palo Alto Police.

“El sospechoso violación a la víctima sobre una base diaria. El sospechoso ordenaría a tener relaciones sexuales. Si se negaba El sospechoso podría arrancarle la ropa y tener relaciones sexuales por la fuerza. La víctima sufrió una infección vaginal debido a violaciones repetidas y consiguió ayuda médica. El sospechoso amenaza con deportar a la víctima cada vez que ella se resiste “.

Dishonest Police and District Attorney’s

Jeff RosenThis is the stuff the Innocence Project should be all about. Getting at the truth before the conviction and providing support to those who find themselves faced with life in prison based on false police reports or coerced confessions perpetrated by Dishonest Police and District Attorney’s.

Heart wrenching stories of those found innocent and released from years of imprisonment can be found at the Innocence Project website.

The vast majority of those released from prison are the direct result of newly discovered DNA evidence pointing to an altogether different person or from coerced police confessions and evidence often times hidden from the defense by unscrupulous District Attorney’s for political gain.

One such cold case where the Palo Alto Police Department and the Santa Clara County District Attorney’s Office sits center stage, is their attempt to build and fabricate a rape charge with evidence they themselves invented and or coerced from their victims and whom they allowed to flee the country.

Massive vaginal infection

The alleged crime is detailed in an emergency protective order outlining repeated rape having caused a massive vaginal infection described by Chief Sex Detective April Chan-Wagner. April Chan-Wagner was lead investigator.

Later discovered through an intercepted medical report from the victims own doctor, was evidence the vaginal disease was not the result of any sexual assault, but rather a yeast infection. Exculpatory evidence April Chan-Wagner and the DA’s office have continued to ignore.

Had a sexual assault occurred, the medical profession is under clear legal responsibility to report any such crimes. The Chan-Wagner report indicates the victim sought medical assistance to bolster her claims to the DA of repeated rape and was used to justify a phone wiretap of the editors’ apartment.

April Chan-Wagner is no stranger to her specialty in the sex business. She headed up and promoted a newly enacted city ordinance in Palo Alto to curb what she felt was a haven for sex crimes taking place in the Palo Alto massage therapy profession and is also known for constitutional rights violations.

Although, charges never resulted in the arrest of the editor of the Palo Alto Free Press, charges still stand and will not be prosecuted “at this time” as detailed in an email received by Chief Prosecutor Daniel Okonkwo in charge of this case. In other words, their opened ended.

No interest in solving crime

Disturbing, is the fact that District Attorney Jeff Rosen has absolutely no interest in solving this alleged crime, a crime with the potential of sending away the suspect for life in prison.

We suspect the District Attorney is protecting the police in not disclosing the actual police reports and tactics used which may have included illegal coercion.

We beleive, coercion to be an unethical tactic often used by police as in the now City of Palo Alto Police infamous David E. Carlson and Jorge Hernandez cases, an all to common occurrence according to the Innocence Project in which the DA’s office and the Palo Alto Police Department would like us all to forget.

Selective Prosecutorial Discretion. It is a criminal act of knowingly providing a false police report. DA’s are obligated to prosecute. But many simply choose to look the other way. As in this case, with Jeff Rosen.

Comment section closed.  Those wishing to may send to editor@paloaltofreepress.com

The Good, The Bad, The Ugly on PAPD Lt. Sandra Brown’s Retirement

Palo Alto Police Lt. Sandra Brown,

I feel compelled to say something for it may be the last time I will ever get the opportunity to given your retirement.

I guess I’ll just say that the real trial will begin in no more than 50 years from now.

You may think you got away with it, but the day will come when all of your family and friends will know the truth and your facade will be ripped away and you will be exposed for what you really are, “for there is nothing hidden that will not be revealed.”

Your estimation and value of me is not much different than some southern slave owner from the 19th century south.  Its that hatred within you which allows you to harm other people who have not harmed you or anyone else.

That’s why America enacted the 13th, 14th, 15th and 24th Amendments, the 1964 Civil Rights Act and 42 U.S.C. § 1983.

Freedoms and rights you don’t believe in for others, but only for yourself and your family.

For Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871, and is also known as the “Ku Klux Klan Act” because one of its primary purposes was to provide a civil remedy against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. 

While the existing law protected all citizens in theory, its protection in practice was unavailable to some because those persons charged with the enforcement of the laws were unable or unwilling to do so.  The Act was intended to provide a private remedy for such violations of federal law, and has subsequently been interpreted to create a species of tort liability.

The catalyst for the enactment of the Act was the “campaign of violence and deception in the South, fomented by the Ku Klux Klan, which was denying citizens their civil and political rights.”  Wilson v. Garcia, 471 U.S. 261, 276 (1985).  The following quote from Representative Lowe of the 42nd Congress is illustrative:

While murder is stalking abroad in disguise, while whippings(electrocutions), and lynchings and banishing have been visited upon unoffending American citizens, the local administrators have been found inadequate or unwilling to apply the proper corrective. 

Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice.  Immunity is given to crime and the records of public tribunals are searched in vain for any evidence of effective redress

http://www.constitution.org/brief/forsythe_42-1983.htm

I remember you once told me that you would arrest anybody who violates the law regardless of who they are, but just not your fellow officers.

I know you know, and that you know that I know you know what you and your own have done.  You’re a con artist supreme and a coward to boot, who stabbed me in the back and lied about it to protect your own whom you take care of just like the drunk cop who totaled his vehicle.

How do you know when the suspect is lying, she keeps changing her story: “this taser camera was sent to Taser International for repair.”  Lt. Sandra Brown June 30, 2011 Judge Lucy Koh’s Chambers/Attorney Steven Sherman’s Sanction Hearing.

One problem Sandra, Andrew Hinz stated in a Declaration and documented in an invoice slip that that Taser Camera had never been sent back to Taser International at any time.

Gotcha.

You lose Sandra, you lost your integrity and you will never get it back unless you come forward with the truth.

You may think that you won’t have to lie about your lies and your fellow officers’ lies again, but “Truth” has an indomitable persistence to rise to the surface when you least expect it.

Retirement Resolution for Sandra Brown