Expanded Web Exclusive: Get Herbie -- Cops Refuse to Rescind Claims Against Rapper Herbert Gonzalez

As the deposition in late January proceeded, Burton was still stunned at the vehemence of Rosenberg’s accusation against his client and immediately confronted him with the DNA suspect, Gallardo: “Don’t you think that’s Milton Gallardo on that videotape?”

“I didn’t say Herbert was on the videotape,” Rosenberg said.

“That’s Milton Gallardo on the videotape, right?” Burton asked.

LASD lawyer David Lawrence instructed Rosenberg not to answer.

“You should instruct your witnesses not to — to smear my client,” Burton responded. “It’s not fair to have a lieutenant from the Homicide Bureau come in and make a defamatory, slanderous, demonstrably false statement when he knows full well that his team is prosecuting Gallardo as the man who is in that videotape.”

The videotape has turned out to be the key piece of evidence in the bizarre case, along with the DNA found on the victim. Armed only with a not-quite-positive identification of Gonzalez from the video as seen on a laptop PC eight months after the murder by someone who couldn’t remember Gonzalez’s last name, the LASD has ignored judicial slap-downs, common-sense stop signs and forensic failures in its never-ending quest to link the now 29-year-old rapper to the gruesome crime.

It’s been one dead-end after another for the detectives’ carefully constructed theory that had Gonzalez at the center of a burglary/murder ring that also involved his cousin Juan “Dreamer” Morales, a mysterious friend named Listo and a white pick-up truck that was seen on the videotape driving in the vicinity of the murder house.

Having a DNA-based suspect handed to them on a forensic platter when Gallardo was forced to give a DNA sample upon entering prison on a car-theft conviction was just the most glaring stop-and-rethink sign on the long, bumpy road that led to the lawsuit.

Other revelations emerged from the depositions of Rosenberg, Gallagher and Seymour:

• The law-enforcement officers admitted that they were surprised when they learned a day after Gonzalez’s arrest that his DNA did not match the DNA recovered from the victim. But they also testified it did not change their theory of the case. Even though they were told it was not a match seven hours before the interrogation they still went ahead and coerced and manipulated Gonzalez — using false promises of leniency and threats — into making incriminating statements that he quickly retracted. Afterward, they ignored all his denials and used those few incriminating statements to get past the preliminary hearing.

• Detectives Gallagher and Seymour said Judge Nishimoto, who threw out the interrogation admissions, was unqualified to handle the criminal case because he normally handles civil cases. They DNA tested approximately 10 people who voluntarily gave samples without the threat of arrest but did not explain why they didn’t simply do that with Gonzalez.

• A white truck central to the detectives’ theory turned out to belong to a supervisor working for a construction company with a roofing crew on the same block as the murder house. The detectives eventually impounded the truck but could find no link to the murder and  returned it in a trashed condition months later. The supervisor driving the truck voluntarily gave a DNA sample that did not match. Yet both detectives still insisted they think the white truck might be involved in the murder.

• Both detectives insist that Gonzalez said “Yes” when asked if he understood his Miranda Rights, even though he says he did not and the recording supports his contention with five seconds of silence until Seymour says “OK” and resumes the interrogation. Their explanation: the recorder simply missed it. And even if he didn’t say yes, they insisted, there was an “implied waiver” of his rights because he resumed answering when Seymour resumed the questioning. Judge Nishimoto pointed out in his ruling that the detective’s testimony at the preliminary hearing on that point — when they testified that Gonzalez said “yes” to understanding his rights — directly conflicted with the recording and with the LASD’s own transcript, which says “no audible response.” He essentially accused them of perjury, although he later told the Weekly he did not consider filing perjury charges against them.

• Even though Gonzalez twice begged to be given a polygraph exam during his interrogation, both detectives admitted that they refused him that opportunity. Rosenberg, their direct supervisor, testified that a suspect should be given a polygraph if it’s requested and claimed he did not know that Gonzalez had been refused one.

Three years later, the refusal by detectives to give him a polygraph exam still rankles Gonzalez — and drives his search for justice. He says he will tell the jury exactly what he would have told the lie detector: the truth.

“I couldn’t believe it when they wouldn’t give me a lie-detector test. That’s when I first knew for sure that these two detectives were trying to frame me,” Gonzalez said this week. “I was begging them, and any detective playing fair and square would have done it. Why else wouldn’t they want to know the truth?”