By Frank Gruber

Feb. 14, 2011 -- Did anyone else find that the response last week of Santa Monica officials to the OIR Group’s report on the police department’s investigation of Oscar de la Torre was disconcertingly self-congratulatory? (See Story of February 8, 2011, SMPD Right to Investigate de la Torre but Used Questionable Methods Report Concludes

To remind readers, the Santa Monica Police Department investigated Mr. de la Torre for several months last year after he intervened to stop a fistfight between two Santa Monica High School students. The department ultimately referred charges that Mr. de la Torre should be prosecuted for child endangerment to the Los Angeles County District Attorney. The D.A. declined to prosecute.

I assume that City Manager Rod Gould and Police Chief Tim Jackman take the OIR report seriously, but from their public comments it sounds like they are treating it as more of an opportunity for a learning experience for the department, rather than what it is: a devastating slam on the department’s score-settling, biased investigation of a political figure many cops don’t like.

And now, by using the excuse that the issue is a “personnel issue,” they seem to be trying to keep the controversy out of public view.

The City’s press release and the comments from Mr. Gould and Mr. Jackman emphasize the OIR report’s conclusion that the department was justified to initiate the investigation. Well, duh. If the superintendent of schools tells the cops he thinks that a member of the school board condoned a fistfight between juveniles, which is how the case started, sure, yes, there should be an investigation.

But the part of the OIR report that condones the investigation takes up less than three pages, including the history of the incident. The rest of the substance of the report, 14 pages, is all about how reprehensibly the investigation was conducted, and concludes with seven serious recommendations on changing department policies.

With respect to this part of the report, all the City’s press release could come up with was that the OIR report “noted that the interviewing and report-writing techniques utilized by the SMPD investigator could raise concerns.”

“Could raise concerns?” The message of the report, getting beyond the measured legal language, was more like this investigation was a travesty and you’d better do something about it unless you want rogue cops investigating anyone they don’t like. (I urge readers to read the report for themselves, which can be downloaded through a link on the City’s press release: L.A. County Office of Independent Review has Concluded its Assessment of an SMPD Investigation

Among other criticisms, the OIR report describes how:

• The department’s investigator abused interrogation techniques by employing an argumentative style with witnesses, advocating a point of view with witnesses, and leading witnesses; 
  
• The department’s investigator ignored exculpatory evidence that supported Mr. de la Torre’s account of what had happened (including, if you can believe this, testimony from the key eyewitness to the fight, the student who aside from Mr. de la Torre was the only bystander who tried to stop it) and failed to interview other eyewitnesses;
  
• The department’s investigator embarrassed Mr. de la Torre by copying e-mails about the investigation to Mr. de la Torre’s school board colleagues;
  
• The department’s investigator failed to note the potential bias of Superintendent of Schools Tim Cuneo, who initiated the investigation but who had been criticized publicly by Mr. de la Torre;
  
• The department’s investigator included in the report allegations against Mr. de la Torre that had no evidentiary basis; and
  
• The department’s investigator wrote a “tendentious” report that was organized like a legal brief rather than a neutral investigative report.

Although the police were investigating Mr. de la Torre on a charge of child endangerment, the OIR Report notes that nowhere in the police report are set forth the elements that the law requires to constitute that crime (or even, for that matter, a reference to the relevant section of the Penal Code). In the words of the OIR report, instead of focusing on the elements of the crime the police report “emphasizes a theory that Mr. de la Torre holds unacceptable beliefs [an alleged “mindset” that kids should be allowed to fight it out], with the natural inference that those beliefs caused him to act (or not act) in a way that endangered a juvenile in his custody and control.”

As I wrote last summer when news of the case broke (see column of July 26, 2010, What I Say--Fools Rush in, the bias of the investigator, masked in his psychobabble about Mr. de la Torre’s “mindset,” permeated the investigation, and in transcripts from interviews the OIR investigators listened to and quote from, this becomes revoltingly apparent.

You can’t help but squirm as you read the investigator’s words as he tells witnesses why Mr. de la Torre shouldn’t be trusted, or when you read about the emails between the investigator and Mr. de la Torre, with the latter desperately trying to prove his innocence to a cop who presumes he’s guilty.

I’ll take Mr. Gould and Mr. Jackman at their words that they intend to implement all of the OIR recommendations, but would they acknowledge that this isn’t just a teachable moment or a personnel matter? Will the City Council acknowledge that? (Will the council even agendize this for discussion?)

For Mr. de la Torre, this was not a training exercise: it was his life. He was a suspect. Does anyone at the City have any idea what that means?

There is one quibble I have with the OIR report, which is when it says that they are is “no evidence to suggest that there was any ill motive behind the employment of these techniques.” I can only attribute this to the OIR investigators trying to be polite; or perhaps they shielded themselves from any knowledge of Santa Monica politics and the history of conflicts between Mr. de la Torre and the Santa Monica police.

Perhaps City Manager Gould and Police Chief Jackman can be excused from any charge of ill motives, since they each only arrived in Santa Monica within the past few years, and clearly they had no control over this investigator. (One of the failings of the department that the OIR investigators noted was that there was no chain of command between the investigator and Chief Jackman, effectively giving the investigator a free rein.) For that matter, I have some sympathy for the Santa Monica police in general, most of whom strive to be professional.

But there is no way to comprehend what happened in this investigation without understanding the context -- that Mr. de la Torre has been a critic of the SMPD since he was student body president at Samohi.

When it comes to alleged crimes by public officials law enforcement has a tricky role, but the police and prosecuting attorneys need to be aware of the difficulties. As I wrote in my column about the case last year, the police should have followed the lead of the City Attorney and realized that there was a conflict of interest in any investigation of Mr. de la Torre by the City. The investigation should have been turned over to a neutral party.

When a neutral party, the District Attorney’s office, finally evaluated the evidence, no charges were filed. As I wrote last year, I am convinced that no neutral party whose mind had not been poisoned by pre-suggestion could view the video of the fight and come to any conclusion other than that Mr. de la Torre acted properly -- in fact, commendably.

In that regard, other than the police department’s investigator, the person who comes off the worst from the report is Superintendent Cuneo. His reaction to an anonymous allegation against Mr. de la Torre set off the whole process. This showed a profound lack of judgment.

I don’t care if the City of Santa Monica apologizes to Mr. de la Torre. I’m sure the apology, coming after all this obfuscation, wouldn’t mean much to him. But I hope the City will apologize to everyone who lives here for the shame of it all.

Event Notice:

I’d like to let readers know that I’m giving a lecture this coming Sunday, Feb. 20, at the Santa Monica History Museum (the new one at the main library). The topic, timed to coincide with Black History Month, is about the Belmar Triangle, the African-American neighborhood and commercial center that was destroyed in the 1950s to build the Santa Monica Civic Auditorium. I will be joined at the event by Carolyne Edwards, of the Quinn Research Center, a foundation that records and preserves histories from African-Americans who have lived in Santa Monica and Venice.

Details:
Sunday, Feb. 20, 2011
2:00 p.m. – 4:00 p.m.
Santa Monica History Museum
1350 7th Street, Santa Monica.

Admission is free, but the museum strongly recommends RSVP’ing, because seating will be limited. RSVP at (310) 395 2290.