|Photo by Nick Ut|
When he announced last September the suspensions of 12 officers based on the allegations of an admitted rogue cop, LAPD Chief Bernard Parks asserted that “We take Rafael Perez at his word.”
That strategy will be tested next week in the first criminal case brought against other officers from the Rampart division. Officers Brian Liddy and Paul Harper and Sergeant Eddie Ortiz face felony charges of conspiracy for framing Allan Manrique Lobos in 1996. Perez said the officers planted a gun on Lobos after breaking up a party staged by 18th Street Gang members.
Prosecutors say they will present a range of evidence at a preliminary hearing next Tuesday before L.A. Superior Court Judge Michael Pastor. But attorneys for the accused officers said in court Wednesday they intend to make Perez the focus of a vigorous defense.
Key to their argument is a series of polygraph examinations administered to Perez by the LAPD toward the end of last year. While prosecutors have acknowledged that Perez failed the lie-detector tests, attorney Barry Levin explained that the tests were more extensive than have been previously disclosed. According to Levin, attorney for accused Rampart CRASH Sergeant Ortiz, “Rafael Perez has never told the truth.”
Prosecutors respond that Perez failed the polygraph only because they were poorly administered. LAPD officials also contend that their own inquiries have corroborated 80 percent of the allegations lodged by Perez, but there’s been no explanation of how the cases were corroborated.
Given the questions about Perez’s honesty, the case against Harper, Liddy and Ortiz seems a curious opening move from a D.A. who has been criticized by Chief Parks and the City Council for moving too cautiously against the cops. Transcripts filed with the court show that, of a half-dozen officers called to testify before the county grand jury on the Lobos arrest, none said they witnessed any misconduct.
To attorney Levin, that shows the only police crimes Perez can truthfully point to are the ones he committed himself. While prosecutors say they remain confident they can make their case, Perez himself may prove a liability. “It seems to me this Rampart scandal has diminished quite substantially,” Levin said outside court last week. “This scandal is restricted to Officer Rafael Perez and his own actions.”
Spokesmen for the district attorney and for Chief Parks declined last week to discuss the results of the Perez polygraph exams. But new details emerged in court, and in documents filed by prosecutors. And Perez attorney Winston Kevin McKesson discussed the tests in an interview.
As Levin explained to Judge Pastor, Perez failed not one lie-detector test but five, administered between November 30 and December 16 of last year by an LAPD polygraph specialist. The five tests each covered a separate area of the Rampart scandal: the shooting of Javier Obando, crippled for life after he was handcuffed and shot by Perez and his partner, Officer Nino Durden; Shatto Place, where one youth was killed and another shot in a raid Perez characterized as “dirty”; a session devoted exclusively to Perez’s accounts of misconduct by his partner, Durden; another devoted to the activities of former Officer David Mack, a onetime Perez associate now serving time for bank robbery; and a final session on “other shootings not disclosed by Perez.”
At the time, the results of the polygraph tests were of critical importance to Perez. He was then still negotiating with prosecutors for a reduced sentence on charges of stealing cocaine from an LAPD evidence locker. In return, Perez was to give truthful testimony on his own extensive misconduct and that of his fellow officers at Rampart.
Then Perez failed the tests. Deputy District Attorney Richard Rosenthal, the prosecutor who first pressed the drug charges against Perez and then supervised his deal negotiations, described Perez’s reaction in a declaration filed with Judge Pastor.
“I advised Perez that he had come back deceptive on each and every polygraph exam. Perez reacted with a great deal of emotion. For more than an hour he insisted that he did not lie on any question given during the examination . . . He requested that we grant immunity to any person necessary to corroborate his allegations.”
In fact, the D.A. followed such a strategy in prosecuting Harper, Liddy and Ortiz, granting limited immunity to Officer Humberto Tovar, only to find that Tovar had little to say that would advance Perez’s story.
Rosenthal’s account closed with details of Perez’s demonstrative response to the lie-detector results. “During portions of this meeting Perez was sobbing heavily,” Rosenthal reported. Apparently referring to the price he was paying for telling the truth, Perez told Rosenthal that “Even in chapel, he has to pray with one eye open,” for fear of retaliation.
The District Attorney’s Office could have ended its talks with Perez right there or, attorney Levin suggested last week, it could have conducted a new round of tests. Instead, District Attorney Gil Garcetti and Perez attorney McKesson commissioned their own experts to challenge the tests.
Both experts came back with the same answer — the tests themselves were unsound. While the D.A. declined to discuss his findings, McKesson said the flaws were glaring. “My expert paged me on my way to church and told me these exams are some of the worst he’s ever seen.” Moreover, McKesson said, “The problem is, my guy is no longer polygraphable.”
McKesson’s expert, Edward Gelb, a past president of the American Polygraphers Association and former guest instructor at the FBI national academy, explained in an interview that the botched tests may have spoiled any subsequent exams. “He’s taken so many tests . . . eventually the technique kind of wears thin. You run into a danger of habituation.”
McKesson declined to make available a copy of Gelb’s report on the original test, as portions have been sealed by court order. He did read Gelb’s conclusions over the â phone, however.
“Two assumptions can be drawn,” Gelb’s report stated. “One, the examiner has no idea how to conduct a zone-comparison examination or, two, the examiner was trying to ensure a false positive result . . . Perez didn’t have a chance of passing such poorly administered examinations.”
In other words, the LAPD examiner was either incompetent or intentionally seeking to undermine Perez as a witness, presumably to protect the other officers fingered by Perez.
Either way, such an exam would set off alarms at the LAPD, where Chief Parks had publicly vowed to get to the bottom of the Rampart scandal. Asked last week if the examiner had been disciplined for incompetence, or if the department was standing by its original test results, Parks spokesman David Kalish refused to comment.
Last February, however, Chief Parks told the Times he believed Perez was less than truthful in at least one portion of his testimony — in regard to convicted robber David Mack. “We believe he knows far more than he’s talking about,” Parks said.
But if the authorities doubted Perez’s candor, they chose to move ahead with the plea bargain, and with developing cases based on his disclosures. “The polygraphs weren’t even considered when the agreement was accepted,” McKesson said last week. “It became a nonissue once we supplied the D.A. with our reports.”
The attorneys for the accused Rampart officers plan to make it an issue again, however. “Perez can no longer be polygraphed? That’s total nonsense,” Levin said in a phone interview. “They’re afraid to have him take it again.”
Even aside from the polygraph results, Perez’s veracity has come under question in several internal LAPD disciplinary hearings. In one case, two officers were exonerated of charges that they framed a man when three civilian witnesses contradicted Perez. In another, where Perez placed an officer at the scene of a party, the accused officer produced receipts for the same day showing he was at Disneyland.
Levin said he believes the D.A. and Parks are sticking with their witness because it would be too difficult to start over. “The prosecution, as they do in many cases, they cut deals with the wrong people. And once they decide who is good and bad, they stay that way.”
Which raises the question of why the district attorney brought this particular case in the first place. D.A. Garcetti said in March that he decided to press ahead with the prosecution because the statute of limitations governing the alleged violations was about to expire. Still, this does not appear to be the slam-dunk case that might spearhead a raft of Rampart prosecutions.
Part of the answer may lie in the fact that a crowd was gathered at the scene of the alleged misconduct. Many of the scores of violations Perez has described were witnessed only by the original criminal suspect, the offending officer and Perez himself. The case charged against Harper, Liddy and Ortiz involved a more populous crime scene, with at least a half-dozen witnesses apart from the cops involved, and with radio transmissions that might be compared to the arrest report, which prosecutors contend was fabricated.
In addition, the case involved officers whom Perez accused of repeated violations — this week, Ortiz, the primary supervisor at the Rampart CRASH anti-gang unit, and Liddy were implicated in a second bogus arrest. As such, the case bears out Chief Parks’ determination to clean up a unit he clearly believes was out of control.
Attorney Joel Isaacson, representing Paul Harper, alluded to that mission when he told Judge Pastor last week, “This case is becoming a question of what the department is all about and not about guilt or innocence.”
But for a scandal that has drawn federal attention to Los Angeles and has shaken the LAPD to its core, this first prosecution features none of the lurid shootings and thuggish police beatings that drew headlines and prime-time TV inquiries for most of the past year. And that highlights an intriguing dichotomy that is becoming increasingly apparent as the Rampart scandal unfolds.
In his testimony about misconduct by other officers, most of the crimes Perez has alleged can be characterized as the sort of routine misconduct — falsified police reports, planted evidence, illicit crash pads — that has been the stuff of citizen complaints across the city for years. In that sense, Perez is just another Mark Fuhrman — an officer whose sudden bout of candor pierces the code of silence to expose the inner workings of a traditionally hard-fisted department.
When Perez describes his own crimes, however, the criminal conduct escalates dramatically. It was Perez, after all, who shot a handcuffed Javier Ovando and banished him to state prison. It was Perez who engaged in a series of home-invasion robberies, stealing drugs, cash and even food stamps from sometimes-destitute victims. And it was Perez who intervened to reduce drug sentences for people he’d arrested, and in return pressed them into service as street peddlers to move drugs he himself had stolen.
In that sense, there may be two Rampart scandals. One involves the LAPD and its long history of tolerating a cowboy approach to law enforcement. The second involves Perez himself and perhaps just a couple of other officers — cops who crossed the line to become, as Perez put it, monsters themselves.
If that’s the case, then Garcetti and his prosecutors will have to reckon with one final, grim irony from Rampart. In cutting their deal with Perez, they may have ensured that the most egregious criminal violations to occur at Rampart are the ones that will never be prosecuted.