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News :: Social Welfare
Justice Denied: A History of the Walker Trial
14 Dec 2005
Below is Regina Cardenas, the daughter of Rudy Cardenas, who was slain by State Agent Michael Walker on February 17, 2004. She is shown at the Santa Clara County Courthouse after a day in the courtroom watching Walker's trial for manslaughter in that killing. Walker was acquitted December 13.
regina.jpgsgpns0.jpg
On December 13, 2005, a San Jose jury found State Bureau of Narcotics Enforcement Agent Michael Walker not guilty of voluntary manslaughter in the case of the killing of Rudy Cardenas. Cardenas’ daughter Regina Cardenas said she was “Completely appalled. We didn’t think that was a possibility at all. It was a shocker. I thought a hung jury was a strong possibility. … I thought [the prosecutor] did a very good job. It just all lay in the hands of the jury. Obviously they didn’t see it the way most of the community saw it.” The story of this trial of a lawman for shooting a citizen is a lesson in law enforcement’s lack of responsibility to the community.

Walker was indicted by a grand jury on July 28, 2004. The family of Rudy Cardenas and their community allies pressed for and got a rare open grand jury that was observed by the public and the press. The family’s use of activism to bring the death of their loved one to the awareness of the public has been an inspiration to other families who have lost members to police violence. Indybay obtained a grand jury transcript, on which this story is in part based.

Cardenas lost his life on February 17, 2004 because he was in the wrong place at the wrong time, because he somewhat fit the description of a wanted man, and because the officer he encountered was Agent Walker. Walker and other officers were doing surveillance in unmarked cars at a house where they expected to find David Gonzales, who was wanted for parole violation, when Cardenas passed by. He drove up in his van and then drove away, and Walker went to pull him over. Walker had very briefly seen a photo of Gonzales, and he mistook Cardenas for Gonzales. When Walker turned on his lights Cardenas was not willing to stop. He had a warrant out on him, although his wife, who was the complainant, was trying to have it canceled. Cardenas had methamphetamine in his system and may not have been thinking clearly. Although Walker did not know the streets of San Jose well, and his car and the other officers’ cars lacked radios on San Jose Police frequencies, Walker made the decision at that point to start a chase.

Officials and stories in the press later said Gonzales was considered “armed and dangerous.” Gonzales was convicted of an assault without a weapon in the 1990s and was at some level gang-connected, but there was no solid information that he was armed and dangerous. In the grand jury hearing Liroff whittled away at this justification, finally saying to Walker’s supervisor, Steve Davies, “So, in fact, you had no information, not only in this millennium, or in any preceding millennium, that this person had firearms or any other weapon.” “No, I did not,” Davies responded.

Brian Link, another State Agent involved in the pursuit of Cardenas, said in his testimony before the grand jury: “We had four cars driving with their lights and sirens on; Agent Walker trying to pursue a wanted felon; myself trying to communicate what was occurring [on a cell phone] with the California Highway Patrol dispatcher and relaying the information about the pursuant, about our locations, speeds, et cetera, to that dispatcher, so she could then relay it to the San Jose Police Department so that we could get some assistance from them. There [were] a lot of things going on; it wasn’t just—we weren’t driving down the street next to each other, talking casually. There was a lot of adrenaline pumping for all of us. We were trying to maintain the safety of the public as well as ourselves.” Yet the chase went through downtown San Jose at speeds of up to 60 miles per hour, with cars running through stop signs and streetlights, and at one point going the wrong way down a one-way street.

Liroff asked Link, “Do you believe that the offense of failing to report to your parole officer when you’re on felony parole for a drug offense is a serious enough offense, sufficient to warrant a high speed chase?” Link answered, “Yes.” On the day of the chase, however, the Highway Patrol was quite surprised by what was going on, and the San Jose Police refused to join in because they considered it too dangerous. “So you’re running around the streets of San Jose,” Liroff asked Link, “with the siren on after a car you don’t—you can’t see, for a suspect you don’t know the name of in a car you don’t know the license plate of, is that about it?” “That’s correct,” Link said.

Cardenas jumped out of his car near Fourth and East St. James streets and ran down an alley, over a chain-link fence, and into a parking lot. Walker ran after him, stopping at the fence. He did not notice that Cardenas was much older, and shorter, than the man he thought he was pursuing. He fired his pistol through the fence at Cardenas, hitting him in the lower back, severing an artery. Paramedics were kept away precious minutes because of a dispatch error caused by the general confusion of the chase. Cardenas was declared dead from loss of blood at a nearby hospital. Although immediately after the shooting Walker said he was not sure if Cardenas had a gun or not, he testified later that he was certain Cardenas was armed with a gun and had pointed it at him while running away.

Liroff, questioning Walker before the grand jury, said: “The thing I’m curious about is that there seems to be a dangerous, almost self-fulfilling prophecy. You think you’re going to see a gun, so [when] something pops out, you think gun, gun, gun. So what I’m curious about is, for a law enforcement officer to say that they are confident that a person has a gun, with this level of information is—is dangerous, isn’t it?” Walker said he did not understand the question. When Liroff explained he meant that Walker could have had tunnel vision that day, Walker said he did not agree.

The trial began October 29 before Judge René Navarro on the sixth floor of the Santa Clara Superior Court. The courtroom was divided in two. Cardenas family members and their supporters sat on the left, behind the Prosecutor’s table. On the right, behind Attorney Craig Brown’s defense table, sat Walker family members and agents of the Bureau of Narcotics Enforcement in plain clothes. The agents wore stickers signifying that they were allowed to be armed in the courtroom. Yomi Wronge, the lead reporter for the San Jose Mercury News—a woman in a wheelchair—sat in the aisle between the two sides. Channel 11 News had asked to put a TV camera in the courtroom, but was denied that opportunity the judge.

As I attended the trial in places and followed it in the Mercury, it became clear to me that law enforcement officers see it as part of their job to work their testimony in such a way as to support their own claims and the claims of a fellow officer. It was to the point where there was a professional level of mendacity going on throughout the entire proceeding. Liroff even said there was a conspiracy of Walker’s fellow officers to protect Walker. Liroff twice saw his prosecutorial attack blunted by episodes of selective memory on the part of law enforcement.

Walker’s supervisor Steve Davies told investigators from the SJPD and the Department of Justice that Walker took off after Cardenas on his own initiative. But on the witness stand October 31, Davies contradicted himself and said he had given Walker the go-ahead to take up the chase. “When asked why his testimony had changed,” the Mercury reported, “Davies said he remembered things differently now.”

Police at the scene of the shooting patted Cardenas down for weapons. Paramedics stripped off Cardenas’ clothes and put them in a pile off to the side of where they were working. SJPD Crime scene investigators, including their supervisor, Sergeant Bruce Wiley, said no weapon was found at the scene. A knife was found in Cardenas’ pocket the next day, however. The bloodied knife had no fingerprints on it. It became central to Walker’s case. It was thought to be the object Walker said Cardenas pointed at him. But its origins remained mysterious. Cardenas was not known to carry a knife. Some wondered why, if he had one, he would return a knife to his pocket after being shot, instead of throwing it away. Sergeant Wiley took the stand for the defense on November 9 and changed his story substantially. He said he actually felt the knife while it was still on Cardenas, but since he thought it was not important evidence at the time, he did not report it. Liroff had suggested the knife could have been planted. While there was videotape showing Wiley “rummaging through Cardenas’ clothes at the scene,” according to the Mercury, Wiley denied any wrongdoing. When defense attorney Brown asked him, “Were you planting evidence?” he answered, “I would risk a 25-year reputation? No sir, I was not planting evidence.”

Walker’s defense showed the jury a video animation representing Walker’s version of the final moments of the chase. It opened with a crime scene photo of Cardenas’ abandoned van, next to Walker’s unmarked car, at the mouth of the alley where their ride through Downtown San Jose had wound up. The scene then morphed into a cartoon. The jury saw a faceless version of Rudy run down the alley and into the parking lot as if through Walker’s eyes. Cardenas twists his hips to his left, holding something in his hand. Walker fires two or three times. Cardenas then twists to his right. Walker fires again. It looked like a video game, where the player sees a threat and has to quickly blast it to win points. Yet this was not a game; rather it was a high-tech justification of homicide that became emblematic for me of the defense’s strategy. They attempted to show—in a slick, hi-tech presentation—that each step of the way, Walker acted professionally; that his training never failed him; and that he was sure and judicious in his actions. They sought to lay the entire burden of blame on Cardenas.

The issue of suicide came up when Cardenas’ widow told police investigators her husband had threatened to bring the police on him to shoot him. She was compelled to testify about it in the grand jury hearing and again in the trial, although both times she tried to explain that it was not relevant to the shooting. As he had during the grand jury hearing, during the trial Liroff dismissed the idea that Cardenas was suicidal. He quoted a famous song by the folksinger Leadbelly: “Sometimes I live in the country, sometimes I live in the town, sometimes I want to throw myself in the river and drown.” Leadbelly, he pointed out, lived to an old age and died of natural causes, despite his suicide fantasy.

The defense called a string of expert witnesses, including an expert on “suicide by cop,” an expert on police training, and the director of an institute dedicated to aiding police through research into the use of force. The costs of the experts, which ran around $3,000 a day, were paid for in part by the State Attorney General’s office, which is preparing to defend against a wrongful death suit by the Cardenas family.

Expert witness Dr. Kris Mohandie said Cardenas’ death could have been a suicide, the study of which is his specialty. He claimed Cardenas could have had mixed motives, and been trying to escape and trying to be killed at the same time. Positioning his hands as if he had a weapon as he ran, as Walker alleged he did, was “part of the theater of causing a confrontation,” Mohandie said. An activist I spoke to outside the courtroom later said suicide by cop could become the blanket explanation for police killings that would otherwise be indefensible.

Curtis Lope, a retired police officer, is an expert on police training. He testified to the high level of modern police education, and concluded, “Agent Walker is an extremely well-trained officer.” Liroff countered that training is imperfect by producing a recent article that said twenty-five percent of police shootings are of unarmed people. Lope did not dispute this finding. He did say, however, that he thought Walker’s actions were appropriate.

The founder of the Force Science Research Center at Minnesota State University, a psychologist named Dr. William Lewinski, is the author of many articles on police shootings in police-oriented magazines. They include, “The Suspect is Shot in the Back, Is Your Shooting Clean?” and “Winning Extreme Encounters: From Street to Court.” As part of his testimony, he showed short films of actors enacting scenes between police and suspects in an attempt to solidify Walker’s position. However, not all of his testimony went well for the defense. The Mercury reported: “Lewinski … told jurors it is not uncommon for police officers who use deadly force to develop ‘fractured memories,’ and to block out details that seemed irrelevant to an immediate threat. Lewinski said research has shown that there is a point at which stress levels become so elevated that a person becomes unable to pay attention, process information and remember the way he or she normally does.” This testimony could have undermined the defense position that Walker was under complete control.

When this trio of experts was being questioned by the defense, they seemed comfortable and their speech flowed, but when cross-examined by Liroff, they often looked cagey and defensive. The prosecution also brought in expert witnesses. An expert in physical mechanics said Cardenas could not have twisted his hips while running the way the defense alleged—it would be physically impossible. A forensic psychiatrist testified that Cardenas was not suicidal the day he was shot—that he was doing everything he could to get away and keep from being shot.

Walker chose to testify, and spent four days on the witness stand. He showed no remorse. The Mercury reported an exchange between Liroff and Walker on November 21: “On cross examination, prosecutor Lane Liroff cut to the chase and asked Walker, ‘Do you think anything went wrong?’ ‘I don’t understand what you mean by wrong,’ Walker replied. ‘Well, Mr. Walker, you shot an unarmed man after a high-speed chase through city streets,’ Liroff said. ‘I don’t agree that’s what happened,’ Walker said. … ‘It’s OK to say you made a mistake, did you make a mistake?’ [Liroff] asked. Walker said he did not.”

Much of Liroff’s cross-examination of Walker had to do with the details of the shooting itself. I saw Liroff spend nearly three hours in court going over what happened in the space of less than ten minutes the day of the shooting. Walker testified that after he cut off Cardenas’ van at the entrance to the alley, Cardenas got out and ran across the front of his vehicle before actually going down the alley. Walker said Cardenas ran with his hands at his waistband, as if he was armed. Cardenas slowed down for a while as if to draw Walker in, Walker claimed, then climbed a fence at the end of the alley—after a couple of tries—and kept running. Then, of course, Walker’s key testimony was that he ran up to the fence and saw Cardenas turn towards him as he ran, holding what looked like a gun. A few moments after seeing this, Walker said, he shot Cardenas.

Liroff introduced a surveillance tape taken of the entrance of the alley, which along with the testimony of another agent who arrived just as the gun was fired, established that Walker shot Cardenas 8.6 seconds after their vehicles came to a stop. Liroff established that 8.6 seconds was much less time than Walker’s version of events would have taken. The actual timing is more consistent with Cardenas running flat out and Walker simply chasing him and gunning him down. The tape did not show anything beyond the entrance to the alley, however, and it seemed for a while that Walker was the only living witness to the shooting itself.

Then the prosecution came up with a surprise witness. Sherrie Green, who had lost her way in downtown on the way to a church on the day of the shooting, came across the scene as Cardenas was running from Walker, and saw Cardenas get hit. She thought she had witnessed a gang shooting and left the scene in a hurry. She said she does not trust police officers and did not want to testify, but read about the trial in the newspaper and concluded her testimony would be important. She testified that Cardenas ran in perfect form, pumping his arms like he was running track—not with his hands near his waistband—and that he did not turn towards Walker, only twisting his body at the time he was shot. Liroff’s careful construction of evidence, along with this testimony, put the lie to Walker’s story. The video-game-like animation turned out to be a complete fabrication.

In closing statements, Liroff called Walker’s actions “reckless misconduct,” and called him a “cowboy” who acted as if he was in the Wild West. He criticized the defense for “demonizing Mr. Cardenas. To make him worthy of killing.” He said the case “isn’t even a close call.”

The outcome of the case, surprising many, was of course the acquittal of Walker. Activists felt Liroff did a fine job. He was relentless in cross-examination. He was well read, prepared well, and seemed intelligent and cultured in everything he did. He said himself that if he had the case to do over, he would do it the same way. It is simply very difficult to prosecute police officers. The civil case by the Cardenas family against the State of California is pending, however, and civil cases in police killings are won or settled much more often than criminal convictions are made.

The night of the verdict a small group of Cardenas family supporters held a candlelight vigil at 4th and St. James streets in downtown San Jose, near where Rudy was shot. Several television cameras were there. “It’s a strong-minded, compassionate crowd,” Regina Cardenas said. “So it’s all we can ask for.”

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