Lt. Daniel Rosenberg hesitated as he pondered the question: Does he believe that Herbert Gonzalez was ever a gang member?
After three hours of rhetorical rope-a-dope , Rosenberg was tired of waiting for the BIG question at the heart of the civil lawsuit. So he answered the question he thought the lawyer should have asked.
“Herbert Gonzalez is a murderer,” Rosenberg replied.
It was a pre-emptive strike, a defiant, damn-the-facts accusation, under oath, by a supervisor in the Homicide Bureau of the L.A. Sheriff’s Department. And it stunned John Burton, Gonzalez’s lawyer. Burton was conducting the deposition at his Pasadena law office as part of Gonzalez’s civil-rights lawsuit against two Sheriff’s detectives over his arrest three years ago for the rape and murder of Libia Cabrera in what came to be known as the Manhattan Beach Housekeeper Murder. The story of Gonzalez’s harrowing six-month journey inside the California justice system — and his narrow escape from death row — was first told by L.A. Weekly last year in the April 10 cover story “Bad Rap: Anatomy of a False Confession.”
“You’re sitting here saying Herbert Gonzalez is a murderer?” the normally low-key Burton shot back in disbelief.
Rosenberg, a 32-year veteran of the LASD, held firm: “Yeah. … That’s what I believe.”
It was one more salvo in the LASD’s fervent but futile three-year campaign to pin the Housekeeper Murder on Gonzalez. The pressure has been so intense that Gonzalez now says his only hope to end the Get Herbie campaign is to get his civil case before a jury of his peers next month. He will tell the court his Hitchcockian tale of being the target of a wrong-man prosecution-turned-persecution by two dogged detectives and their supervisor, Rosenberg, who won’t admit they may have made a terrible mistake that turned a man’s life upside-down.
“Honestly, I don’t think they understand all the damage they did to me and my family,” Gonzalez says. “All the money in the world can’t fix what they did. But it would help heal the wounds a little faster.”
A series of rulings last week by Judge Florence-Marie Cooper rejected defense appeals to dismiss the case and cleared the way for a trial to start June 16 in federal court. As the clock ticks down toward what Gonzalez hopes will be his day of vindication, the LASD continues to search for any evidence that could tie him to the murder.
“They’re still following me,” says the rapper, now 29. “I see them wherever I go, at my job or at school. But it’s OK. I have nothing to hide…. I trust in God to see me through this ordeal. He got me out of jail when it looked like that would never happen.”
Starting with his wild, guns-drawn street arrest by a small platoon of undercover officers a block from his home, the Get Herbie campaign was effective. After his January 6, 2006, arrest and interrogation, his bail was set at $1 million. His family was tapped out because his mother had to take out a second mortgage to pay the $100,000 retainer required by the criminal-defense attorney she hired after his arrest. So Gonzalez was jailed for 165 days at the Twin Towers. Finally, at a July 2006 evidence-suppression hearing, an hour before his criminal trial was scheduled to start, a judge threw out Gonzalez’s interrogation statements. The state said it was unable to proceed without those statements — implicitly admitting it had no other evidence. A shocked Gonzalez walked out of the Torrance courthouse a free man, eternally grateful to a god who had listened to his daily prayers.
But there was someone else on his side that day: a judge who normally handles civil cases — who actually read all the documents in the case and listened to the interrogation recording before making any rulings. Judge Cary Nishimoto is not a part of the criminal-justice club — which often includes former prosecutors and which too often rules over a production line of presumed felons and born-to-be-bad guys. He admonished Rosenberg’s detectives on the case, Katharine Gallagher and Randy Seymour, for using coercive tactics to obtain a halting, confused and quickly retracted admission by Gonzalez to being on the sidewalk outside the murder house.
The Get Herbie campaign continued even when another man, 25-year-old Milton Gallardo, was charged with the Housekeeper Murder in October 2007 on the basis of a match to DNA on the victim. Gallardo gave a statement after his arrest claiming that he and the victim, who was married, were having an affair. He admitted that he was at the murder scene and said they had consensual sex that morning. But he insisted that she was fine when he left and that he did not rape or stab her or set her on fire.
At first, the arrest of Gallardo and the two men’s physical similarities seemed to indicate that the Gonzalez prosecution had simply been a case of mistaken identity. But the LASD has fought Gonzalez’s lawsuit at every step, even unsuccessfully requesting that the discovery process be halted by Judge Cooper.
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?”