NLG Lawyers Fight to Overturn Occupy Conviction in Case Demonstrating the Limits of Police Body Cameras

On November 2, 2011, Occupy Oakland supporters called for a General Strike and Day of Action in response to OPD’s disastrous militarized assault on demonstrators on October 25, when veteran Scott Olsen was nearly killed by an OPD officer and many others were injured. On November 2, thousands of people marched to, and shut down, the Port of Oakland. Later that night, when demonstrators occupied an abandoned building, scores of police responded with dangerous Specialty Impact Munitions and explosive teargas grenades. Before the night was over, another veteran lost his spleen to a baton-wielding officer; Scott Campbell was shot in the groin while he was peacefully filming the police line; a seminary student was bombed with CS Blast grenades, sustaining a permanent auditory injury; and legal observers, medics and a journalist were arrested when they took shelter in an alcove to escape the barrage of munitions and teargas.

OPD officer on November 2nd. Photo by flickr user quinn norton.

Many of the OPD officers at the scene were wearing body cameras (PDRDs). In fact, OPD was one of the first law enforcement agencies in the country to acquire body cameras, as a result of the Negotiated Settlement Agreement (NSA) entered into in 2003 in an effort to bring basic accountability reforms to the troubled Department. However, when Scott Olsen was shot on October 25, 2011, only one out of the thirteen SWAT officers in the vicinity had his PDRD on. On November 2, around midnight, there were at least 40 officers with PDRDs in the area of 16th and San Pablo. That was when officer Anthony Tedesco claims to have spotted one man breaking all of the windows to the OPD Internal Affairs and Recruiting offices at the north end of Oscar Grant Plaza.

Tedesco claims to have seen this from the staircase of a parking garage some 70 yards away, in the midst of a chaotic scene in which officers were being ordered to shoot lead filled rounds at demonstrators who threw objects or approached the police line. Tedesco pointed out a young man named César Aguirre for arrest and he was charged with felony vandalism. Aguirre was one of the very few people arrested during the fall 2011, Occupy events to actually be prosecuted for anything.

A volunteer lawyer recruited by the NLG represented Aguirre through a jury trial, which was held in August, 2012, before Alameda County Superior Court Judge Jon Rolefson. Aguirre’s lawyer asked for discovery, but the District Attorney produced only a few documents, telling the lawyer that there was no video of the incident, and that she had complied with her discovery obligations. Mr. Aguirre’s lawyer specifically asked for the police radio communications records, but they were never produced.

Based on the testimony of just one prosecution eyewitness, Tedesco, the jury convicted Aguirre of felony vandalism. The court sentenced him to six months in jail and five years formal probation. While the criminal case was pending, the City of Oakland, under pressure to put a stop to demonstration-related property damage, announced in the press that it was suing Aguirre civilly for the window damage. Even though the court has ordered Mr. Aguirre to pay the cost of the windows as restitution in the criminal case, the City is still pursuing this duplicative civil lawsuit.

Meanwhile, in response to the police attacks on Occupy Oakland, the NLG and ACLU filed a federal civil rights police misconduct lawsuit immediately after November 2, 2011. Accordingly, in this unrelated federal litigation, NLG lawyers obtained the PDRD videos and other police records that had not been disclosed in Aguirre’s state court criminal case.

Due to the huge public outcry over the events, OPD also posted certain evidence, at various times, on its public website, which also had never been disclosed in the criminal case. Aguirre’s court appointed appellate counsel ran across some of this, and got in touch with Rachel Lederman, lead counsel on the NLG lawsuit. The police dispatch logs and four PDRD video clips, which had never been disclosed in the criminal case, then formed the basis for a habeas corpus petition.

In March, 2014, the state Court of Appeal issued an Order to Show Cause, finding a prima facie case for relief based on the prosecution’s failure to disclose material and exculpatory evidence in violation of its constitutionally mandated duties, returning the case to the Alameda County Superior Court for an evidentiary hearing on this Brady claim. Lederman was appointed to represent Aguirre on the Order to Show Cause, and attempted to introduce additional video and reports, which contradicted and impeached the trial testimony. Aguirre’s case was assigned back to Judge Rolefson, who proceeded to deny him any discovery, refused to consider much of the evidence, and finally denied the petition without holding an evidentiary hearing. The legal team returned to the Court of Appeal, and in September 2015, the appellate court issued a peremptory writ of mandate ordering the Alameda County court to hold an evidentiary hearing.

The hearing was finally held over five days in early December. Attorney Brian McComas joined Mr. Aguirre’s legal team, and with the help of NLG student extern Cammie Dodson, the lawyers showed a dozen OPD PDRD videos and examined 13 witnesses, mostly police officers. During this hearing, it came out that the police radio communications recordings had been destroyed, even though these were the subject of discovery requests and subpoenas both in Aguirre’s case and in the Occupy civil cases.

The evidence that the NLG team was able to present contradicted Tedesco’s trial testimony in many ways. For example, at trial, the jury was told that Tedesco watched Aguirre break the windows from the parking garage staircase, and then kept him continuously in sight as he came down the stairs, walked into the Plaza, and identified him for arrest. However, the “new” video and other evidence established that there was a full hour between the time that Tedesco claimed to have seen Aguirre break the windows and the time he was arrested, and that during this time, Tedesco was involved in dangerous operations including a police sweep of the parking structure, another attempted arrest, and shooting munitions.

At trial, Tedesco was very clear that he saw Mr. Aguirre smash all the windows in one fell swoop that took no more than two minutes. But when Tedesco was confronted with the previously suppressed PDRD videos, he changed his story and testified that there were three separate episodes of window smashing.

Unfortunately, Judge Rolefson immediately denied the habeas petition after previously denying Aguirre the right to present rebuttal argument. Aguirre is appealing by way of filing a third habeas petition in the Court of Appeal. His attorneys are confident that the record submitted to Judge Rolefson was sufficient to show that the prosecution violated Aguirre’s constitutional rights by not disclosing exculpatory evidence that would have impacted his trial, and that his conviction will eventually be overturned and the civil suit against him thrown out.

Aguirre’s case raises questions as to whether video evidence from OPD, and other police agencies, is being produced as it should in criminal cases – and whether local superior court judges will enforce criminal defendants’ right to all potentially favorable evidence the police have. We already know that policies for release of body and dash camera videos under the California Public Records Act are very inconsistent. On the other hand, one can be sure that the videos will be released when they are helpful to the prosecution. This is one of the reasons that body cameras are not a solution to police misconduct in and of themselves and that policies for use, retention and disclosure must be carefully thought out.