Conviction In Pusok Beating Denotes Significant SBC Cultural Shift

In rapid order this and last week, what registered with some as a significant cultural shift in San Bernardino County took place, with the conviction of one and reduced charge guilty pleas of two of the sheriff’s deputies charged with having used excessive force in the April 9, 2015, beating of Francis Pusok.
On March 30, the jury that had heard the case against San Bernardino County sheriff’s deputies Michael Phelps, Nick Downey and Charles Foster on felony charges of assault under the color of authority deadlocked 8-4 in favor of conviction against Phelps and Downey and convicted Foster. Four days later, with the district attorney’s office and the two defendants’ attorneys set for an April 21 pre-trial hearing on a second trial, Phelps and Downey entered guilty pleas to misdemeanor disturbing the peace charges, and the case, minus a yet-to-be filed appeal of Foster’s conviction, was brought to a close.
Yet even before the jury returned with its verdicts, the San Bernardino County law enforcement establishment shuddered with a series of convulsions and serpentine twists no less extraordinarily improbable than Pusok’s experience almost two years ago that started out as what should have been for him a non-encounter, when he found himself outside his own Apple Valley neighborhood at the home of an acquaintance when deputies arrived with a search warrant. Pusok, who had previous felony and misdemeanor convictions on resisting arrest, animal cruelty and attempted robbery charges, escalated the chance circumstance into a mad and unnecessary dash for escape, first through both the incorporated and unincorporated areas of Apple Valley and the unincorporated area of Hesperia, the theft of a horse, a wild ride across some extremely rugged terrain in the area of Bowen’s Ranch and Deep Creek Hot Springs with several deputies, disembarked from their vehicles and in foot pursuit, before the misadventure concluded with Pusok being thrown from the horse on a chaparral-strewn hilltop, then being swarmed upon by one arriving deputy after another and being pummeled while he lay on the ground, with the last stages being videoed by a Los Angeles-based news helicopter.
In delivering his closing arguments, the prosecutor trying the case, Robert Bulloch, offered what, it seems, two thirds of the jury concurred with, an observation that the San Bernardino County Sheriff’s Department embodies an ethos in which those in authority believe they have license to apply physical force to achieve their objectives. During his closing argument and in his rebuttal to the closing statements of attorneys Michael Schwartz, Kasey A. Castillo and Heather Phillips, representing Downey, Phelps, and Foster, respectively, Bulloch engaged in an animated and free-ranging condemnation of the accused, referencing Scripture and the parable of the Good Samaritan, and at one point asserting, “We have to have the will to take on the machine of the San Bernardino County Sheriff’s Department” which he said was home to a “culture of violence” maintained through a “code of silence.”
That resulted in a firestorm of criticism being leveled at Bulloch, originating within the law enforcement community, with which, as a prosecutor, Bulloch routinely coordinates. Most vociferous was SEBA, the Safety Employees Benefit Association, which represents the San Bernardino County’s sheriff deputies. SEBA President Laren Leichleiter demanded that Bulloch apologize for and retract the aspersions he said Bulloch had cast upon the deputies he represents.
“Law enforcement is a complex profession and its members confront perilous situations,” Leichleiter said. “Deputies must make split-second decisions during dangerous circumstances that are later exhaustively scrutinized. We back our members and understand the precarious position in which they were placed.”
In an official pronouncement, SEBA propounded, “The Sheriff’s Employees’ Benefit Association is outraged by the comments made by deputy district attorney Robert Bulloch, who without warrant, made a sweeping indictment of all our members who work diligently to protect our community. The statements made by deputy district attorney Robert Bulloch regarding a ‘culture of violence’ perpetuated by the San Bernardino County Sheriff’s Department are reprehensible and baseless. Bulloch used inflammatory language and antics to sway a verdict, at the expense of every deputy in this county. Furthermore, Bulloch’s comments about having the ‘will to take on the machine of the San Bernardino County Sheriff’s Department’ flies in the face of the spirit of collaboration in the public safety sector. Bulloch’s focus should remain on the facts at hand, not inflict undue damage on those who put their lives on the line every day for other’s (sic) protection. He owes the hard-working deputies of San Bernardino County an apology.”
San Bernardino County District Attorney Mike Ramos, who employs Bulloch as one of his deputy prosecutors, was elected with SEBA’s support when he defeated former district attorney Dennis Stout in 2002 and has relied upon SEBA endorsements and political contributions ever since. With few exceptions, he has consistently backed the sheriff’s department in those circumstance where officer activities have fallen into question, the exceptions being those cases where independent videographic evidence, such as that in the Pusak case, reached the media or in matters where testimony against deputies from other deputies was available. In all officer involved shootings by members of the sheriff’s department or any municipal police departments in San Bernardino County, for example, with the lone exception of deputy Ivory Webb’s 2006 shooting of a surrendering airman Elio Carrion caught on video, Ramos has made findings the shootings, many of them fatal, were justifiable.
Having declared his candidacy for reelection in 2018 in which he is being challenged by one of his own deputy prosecutors, and faced with the contretemps brewing between Bulloch and SEBA, Ramos sided with SEBA. The day after closing arguments in the Downey, Phelps and Foster case, Ramos utilized social media to state, “As district attorney, the remarks that were made in closing arguments regarding the alleged ‘culture of violence’ brought on by a ‘code of silence’ do not reflect my views or my longstanding support and faith in the San Bernardino County Sheriff’s Department,” Ramos said in his statement. “I want to make it very clear that I have the utmost respect for and confidence in their organization, at every level. Our deputy sheriffs are the most hardworking, ethical and dedicated law enforcement professionals in the nation.”
With the fate of Foster, Phelps and Downey yet hanging in the balance as the jury deliberated, Bulloch, at Ramos’s instigation, fired off the demanded-for apology to Leichliter by email, in which he abjectly wrote, “I personally and sincerely apologize to each and every deputy in the San Bernardino County Sheriff’s Department for the comments I made in my rebuttal argument. While it was my position and intention that my comments be limited to the three deputies charged in this particular case, I can certainly see that the way it read in the press could be construed that I was painting with a broad brush across all the San Bernardino Sheriff’s Department. That was never my intention.”
Bulloch’s retreat notwithstanding, the following day the jury returned with a verdict of guilty against Foster, whose arrival at the Pusok arrest scene came well after the suspect was on the ground. The jury further deadlocked 8 to 4 in favor of conviction against Phelps and Downey, who were in the thick of the arrest from shortly after Pusok was thrown from the horse.
Foster’s conviction and the jury hanging with regard to Phelps and Downey was remarkable from a multitude of standpoints.
Historically, the district attorney’s office rarely files charges against law enforcement officers stemming from action in the line of duty. And within the subset of cases thus filed, convictions are just as rare. Cases filed against law enforcement officers in San Bernardino County share at least one of four features, consisting of the act having been caught on video; a level of heinousness or egregiousness that shocks the senses; victimization that includes another law enforcement officer; and sexual crimes by officers against underage or vulnerable females.
In the 1980s, former district attorney Dennis Kottmeier was unable to get a conviction against one of his own investigators, Tom Dawson, when he charged him with misappropriation of the district attorney’s department assets.
Traditionally in San Bernardino County, law enforcement officers have been granted license to employ whatever degree of force they alone deem appropriate in their contact with citizens. There is an increasingly wider perception that the level of force used on occasion is unnecessary or crosses the threshold into brutality.
In San Bernardino County, charges against police officers and sheriff’s deputies for excessive use of force are exceedingly rare, and charges against police or sheriff’s officers for falsifying their police reports to downplay that use of force are virtually unheard of.
The most celebrated cases relating to excessive use of force in San Bernardino County prior to the Pusok matter were the prosecution of sheriff’s deputy Ivory Webb, accused of shooting an unarmed U.S. Air Force airman back on leave from Iraq in 2007, and the prosecutions of two former Adelanto police officers, Thomas Chandler and Kenneth Gailey, charged in the previous decade with trying to beat a confession out of one suspect and beating another before forcing him to lick his own blood off a booking room floor.
In the case of Webb, he was caught on video at the end of a pursuit of Luis Escobedo, reaching at times 120 miles per hour through the unincorporated county area between Ontario, Montclair and Chino on January 29, 2006 after Escobedo slid out of control and wrecked his Corvette. On that video, taken by a nearby resident who turned his video camera on in the aftermath of the crash, Webb can be seen pointing his gun at Carrion, who is on his hands and knees and appears to be complying with Webb’s profanity-laced commands, before Webb, rather inexplicably, opened fire, wounding but not killing Carrion in a hail of fire. Ramos, who called the video “shocking,” filed charges against Webb and assigned the case to one of his more experienced prosecutors, Lewis Cope. But Cope put on a rather lackluster case against Webb, prompting charges from many quarters, including within the district attorney’s office itself, that Cope was purposely, at Ramos’s direction, throwing the case. Cope was consistently outhustled, outmaneuvered and outlawyered by Webb’s attorney, Michael Schwarz, considered a premier litigation specialist in the area of defending peace officers in criminal matters within the State of California.
Previously, the San Bernardino County District Attorney’s Office, then led by Ramos’s predecessor, Dennis Stout, took up the case against Chandler and Gailey, but ran into a buzz saw of opposition when local police and deputy sheriff’s unions closed ranks to protect two of their own, making sure that Chandler and Gailey had the strongest legal team available to protect them, while officers worked pro bono as defense investigators on the case, going over virtually everything with a fine toothed comb. They found some anomalies in the way the matter was being handled, and the case against Chandler and Gailey was dismissed because of prosecutorial misconduct. While the matter was under appeal, the U.S. Attorney’s Office in Los Angeles stepped in and filed charges against Chandler and Gailey, who then pleaded guilty in 1997 to federal civil rights violations.
In 2012, Ramos made a rare, and far less publicized, criminal filing against two San Bernardino County deputies, Michael Parham and Shadia Adham, in connection with the May 20, 2012 beating of a highly intoxicated Mario Madrigal in the backyard of his home in the 4000 block of North F Street in an unincorporated pocket of San Bernardino. After a complaint from a neighbor, Parham and Adham responded with two other deputies, Ryan Cook and John Deen, shortly after 1 a.m. and detained the then 46-year-old Madrigal. When Madrigal became combative and resisted arrest, he ended up on the ground. Upon the deputies attempting to lift Madrigal, he resisted further and Parham repeatedly kicked Madrigal hard in the ribs, saying, according to a later sheriff’s department incident report, ‘Oooh, that had to hurt,’ and ‘You’re gonna fucking hurt in the morning.” Another sheriff’s department report said that Parham was stepping on Madrigal’s head and kicked him in the groin while he was handcuffed.
When a witness to the beating asked Adham for her name, she gave the names of two other deputies in the department, a man and a woman, who were not there. It was the fallout from the other deputies being subjected to the false accusation of having beaten Madrigal rather than the beating itself which led to the charges. Parham was fired by the sheriff’s department in November 2012 as a consequence of the follow-up investigation, which entailed Cook and Deen writing more comprehensive reports than they had originally in order to clear the two deputies who were not on the scene and had been identified as taking part in the incident as a result of Adham’s misidentification of herself and Parham. Adham was charged with a single count of impersonating a police officer, a misdemeanor, but the charge was later dropped. Parham insisted on going to trial on the matter in the summer of 2014, represented by attorney Harry Stern, and on August 27, 2014 was convicted on charges of assault by a police officer and battery.
The Parham and Chandler/Gailey cases entailed extraordinary elements that set them aside from other examples of excessive use of force and police brutality. Parham was undone, essentially, by Adham’s effort to shift the focus of what had occurred from Parham to another law enforcement officer. In the case involving Chandler and Gailey, an audiotape recorded in May 1994 the pair did not know about came into the possession of the prosecutors. In that recording, Chandler could be heard asking Joseph Valdes, who was suspected of abusing his daughter, “Are you going to tell us what we want to hear?” as he and Gailey beat him, twisted his limbs and kicked him. In October 1994, Chandler and Gailey beat Henry Easley, who had been arrested on drug charges, in retaliation for Easley having spat on a fellow police officer. Easley was hit so hard on the head that he started to bleed, at which point Chandler ordered Easley to lick his blood off the floor. A just-hired police officer who had witnessed the beating came forward to inform on and then testify against Chandler and Gailey.
Dan Lough, who was a prosecutor with the San Bernardino County District Attorney’s Office from 1977 until 1985, was then a senior prosecutor with the Riverside County District Attorney’s Office from 1986 to 1994 and assistant district attorney in San Bernardino County from 1995 until 2001, told the Sentinel in the aftermath of the media frenzy over the worldwide broadcasting of the Pusok beating that the reluctance to prosecute law enforcement officers is an outgrowth of the close relationship between the prosecutor’s office and the law enforcement agencies within the prosecutor’s office’s jurisdiction. He suggested that the pass peace officers are given on citizen abuse cases is less a result of prosecutors trying to cover up wrongdoing than a reflection of the practical difficulties entailed in obtaining convictions against law enforcement officers, who are generally viewed more favorably by juries than are run-of-the-mill criminal defendants.
“Police officers are trained as witness and for that reason they make a really good impression on a jury,” Lough said. “In addition, the investigators on these cases are often friendly to the officer.”
Lough was heavily involved in the district attorney’s office’s prosecution of Chandler and Gailey matter, while he was second-in-command under Stout. He said the “quality of evidence” was paramount in prosecuting law enforcement officers. “As the assistant district attorney, I had to personally sign off on all of the cases involving charges against police officers. Before they would be filed they went to me. If you could prove they [the officers] were good for it [i.e., guilty] and there was the evidence to make a case and get a conviction, then I would approve going in that direction. That did not happen often. We passed on [rejected] most of those cases. I saw conduct by officers a lot of time I did not approve of, but I had to evaluate the case from a prosecutorial standpoint as to whether we could prove criminal intent and criminal conduct to a jury. Juries are much more willing to side with the officer. More often than not, the police officers are not going out there to kill or hurt someone. A lot of times they do make mistakes. But does that rise to the level of a crime? For me, it is the provability of a case that translates into willingness to prosecute someone.”
Lough said he understood that officers are intent on maintaining command presence and sometimes overreact to any challenges, real or just perceived, to their authority. That overreaction, he said, can escalate into the use of force. “Very often, the police are concerned about control,” Lough said. “There is a reason for that. Sometimes control comes down to perception or just a feeling. They have been trained to control a situation and when that control drifts away from them, they often act badly. In this society, we have a right to disagree and a right to do certain things even if others do not like it, but if you are interacting with a police officer, and are even within your rights, you might flunk his attitude test, and things can end up going badly for you.”
After the fact, the police officer has a last word of sorts, Lough said, because he can put his description of what occurred into a police report, which has official status. Lough said he often detected in police reports an effort to obfuscate the use of excessive force. “The reports are written in such a way to support the officer,” Lough, who is now retired, said. “Seldom, if ever, do you get the story from the citizen.”
Ramos, who was elected and reelected district attorney with the support of law enforcement, including police administrators, management, and officers, including police employee unions, in his public statements and acts has made little in the way of acknowledgement of the reality of officer-on-citizen violence, instead focusing on citizen-on-officer violence. While this has generally endeared him to law enforcement officers, in some specific cases, as with the case involving Phelps, Foster and Downey, it has struck a discordant note. Since Phelps, Foster, and Downey were identified and charged on September 1, 2015, it has been widely noted by many, including other members of the sheriff’s department, that Foster, Phelps and Downey were among the youngest and lowest ranking of the contingent of officers that converged on Pusok, and that at least five of their sheriff’s department colleagues can be seen in the video raining blows, kicking or stepping upon Pusok after he was in a prone position. One of those officers on the scene was the scion of a former top ranking member of the department who is himself on a career trajectory that will likely take him into the command echelon. This has given rise to the insinuation that Downey, Foster and Phelps were in some measure scapegoated.
Following Foster’s conviction, his attorney, Heather Phillips, told the Sentinel, “Mr. Foster and his family are saddened by the jury’s verdict. This is not what we hoped for and, quite honestly, not what we expected.
“Evidence was presented in the form of an expert witness in an attempt to help the jury understand a deputy’s perspective, as that is the legal standard by which Mr. Foster’s actions must be judged,” Phillips continued. “It appears that the jury ignored that evidence and, instead, bought into the dramatic and improper arguments made by the prosecution.”
Phillips said the trial and closing arguments in particular were marred by improper conduct by Bulloch which deprived her client of fair consideration. “I moved for a mistrial on Monday [March 27] morning and again on Tuesday,” Phillips said. “While the court acknowledged that the prosecution willfully violated a court order in his closing argument, the court denied the motion for mistrial. The motion was renewed on Tuesday, based again on prosecutorial misconduct for what appeared to be an intentional misrepresentation by the prosecution regarding the violated court order on the day prior, as well as a number of religious, irrelevant, and prejudicial remarks during closing arguments that were expressly discussed and ordered not to be mentioned by the Court prior to the trial beginning.”
Phillips said, “Unfortunately, the prosecution chose to present this case in a manner that caused a circus-like atmosphere throughout the trial, bending the rules past their breaking point every time it seemed to suit its case. The combined effect of the prosecution’s inflammatory presentation of the case, coupled with the prejudicial and improper arguments made seem to have distracted the jury from its primary duty: to render a verdict based on the facts, evidence, and principles of law presented to them.”
Phillips said she is committed to making whatever efforts she must to ensure the verdict does not stand.
“We will appeal on those grounds as well as the inclusion of a jury instruction, over objection, that misstated the law and likely served only to confuse the jury on the relevance of a deputy’s state of mind in this case,” she said.
In response to her perception of why her client, Foster, had been convicted while the jury was unable to come to a consensus with regard to Downey and Phelps, Phillips said, “The difference in verdicts is explainable most likely due to the fact that Mr. Foster’s involvement in the incident with Mr. Pusok took place at a time after the contact for which the two co-defendants are charged. The facts and circumstances of the interaction were very different for Mr. Foster, as he was alleged to have committed assault after Mr. Pusok had been handcuffed, while the co-defendants are alleged to have committed assault upon their initial contact with Mr. Pusok.”
Foster was convicted on the basis of atmospherics rather than facts, Phillips asserted.
“If the jury had been presented with this case in a non-prejudicial and proper manner, I would trust in the jury system and not appeal the verdict solely because I disagree with it,” Phillips said. “However, it seems an inescapable conclusion that the jury was swayed by the unfortunate way in which the case was presented, over many defense objections. It was presented as an attack on the sheriff’s department in general so as to attack the credibility of the defense’s expert witness, despite the fact that the San Bernardino County District Attorney’s Office has retained the very same expert to prosecute more than a dozen cases. Apparently, the sheriff’s department and anyone who has ever worked for it cannot be trusted, unless it would be beneficial for the district attorney’s office to do so. The prejudicial and improper closing arguments simply sealed Mr. Foster’s fate, in that he would be convicted on exaggerated theories of what happened, rather than the actual evidence.”
Phillips said, “I will file a motion for judgment notwithstanding the verdict in the near future and, if it becomes necessary to ensure my client’s right to a fair trial is protected, an appeal to the California Court of Appeals.”
Michael Schwarz, who represented Downey and has had a consistent string of success in representing police officers throughout California and particularly in San Bernardino County heretofore, told the Sentinel this week the atmospherics and the dynamics of the law, or its interpretation, as it relates to law enforcement officers in San Benardino County is changing, as is it elsewhere. That is most apparent, he said, in the liberties taken by the prosecution.
“To be blunt, considering how the jury was instructed in accordance with the law, and closing arguments, I was surprised it wasn’t a not guilty verdict,” he said of the 8-4 verdict for conviction of his client and Phelps.
As to Mr. Bulloch’s closing arguments and rebuttal, Schwarz said, “I thought they were highly inappropriate and unprofessional.”
Did he believe Bulloch’s statement had crossed the line to prosecutorial misconduct?
“Yes,” said Schwarz. “I made three motions for a mistrial during closing arguments.” Beyond Judge Dwight Moore’s denial of that motion, Schwarz said he will not pursue the matter. “My client pled guilty to a drastically reduced charge of disturbing the peace. “My role in the criminal proceedings is over.”
Law enforcement officers are no longer considered sacrosanct, Schwarz said, in San Bernardino County and elsewhere.
He said that what is going on here is “a microcosm of what is going on in parts of this country, if not the entire country. Anyone who has the experience of going through a criminal trial must be afforded a presumption of innocence and the only exception to that is in the case of police officers.”
The images caught on the video and broadcast to the world created a perception of guilt that hovers over the deputies, Schwarz said.
“The video is a window into part of the story,” he said. “It is never the entire story. The law mandates that the jury base its decision on the perspective of a police officer on scene, and not from the vantage point of a detached, two-dimensional video. Unfortunately, the public doesn’t see it that way.”
The verdicts belie a larger reality in San Bernardino County, which as recently as a decade ago was one of the last bastions of Republicanism in the Golden State. California, from which three Republican U.S. Presidents hailed in the 20th Century, and which was celebrated as “Reagan Country” a generation ago, has been growing more and more Democratic, with the Democrats now holding supermajorities in both houses of the state legislature, while occupying the Governor’s Mansion and the office of Attorney General. San Bernardino County had defied that trend and over much of the last two decades, all of its district attorneys, all of its sheriffs and consistently two thirds or four fifths of the members of the board of supervisors during that time have been Republicans, although ostensibly, but only ostensibly, those positions are considered non-partisan. But more than five years ago, in conservative San Bernardino County, the voter registration numbers crossed over in favor of the Democrats. At present, the Democrats in San Bernadino County have widened that lead. As of Sunday, 366,847 of the county’s 915,919 voters, or 40.1 percent, were registered Democrats, while 290,523 or 31.7 percent, were registered as Republicans. With Democrats being the progenitors of prison realignment and ending incarceration for significant portions of the population convicted of non-violent criminal offenses, liberalizing drug laws and reforming the bail bond system among other rejections of the law and order ethos that once dominated the society, a new attitude toward the law and lawgivers is in ascendency, putting lawmen at a social station no higher than other professionals, denuding them of their patina of invulnerability to the rule of order they are licensed to enforce. In this way, Charles Foster has attained a status he would rather have not had as a significant San Bernardino County historical personage, the first of its law enforcement personnel to have felt the tangible impact of members of his profession now being deemed to be of no higher standing in the eyes of the law than the general citizenry, including its various and sundry miscreants, they are called upon to police. -Mark Gutglueck

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