http://statelymcdanielmanor.wordpress.com/category/erik-scott-case/
In the Erik Scott case—and many
others—I have often cautioned readers about witness testimony. Update 8 dealt with the topic in some detail. Understanding its pitfalls is one
of many reasons I cannot bring myself to watch TV cop dramas, or indeed, much
of what passes for police realism at the movies. The entertainment
industry commonly depicts witnesses in one of two ways: (1) the virtuous,
absolutely accurate citizen misunderstood by the police until they are
unquestionably proved right, and (2) the liar who is eventually exposed and
prosecuted by virtuous police officers. These stereotypical characters
fit well into common narrative structures, but in reality, eyewitnesses are
influenced by a bewildering variety of factors, many of which are not obvious
to investigating officers, and many of which will never be known to
investigating officers.
In cases like the Scott shooting–which
happen very quickly and unexpectedly–eyewitness accuracy is further hampered by
three overwhelming factors: (1) there was a tightly packed crowd of several
hundred people, making a consistently, clearly unobstructed view of the action
difficult or impossible for many in that crowd, (2) from the first shouted,
contradictory command until the first shot struck Erik Scott, only two seconds
elapsed—if a witness wasn’t in a position to see that action from the
beginning, it would be unlikely they would see much of anything—and (3) From
the moment the first shot was fired, virtually everyone in the crowd was
running, ducking, hiding and sheltering loved ones with their bodies from what
they were certain was uncontrolled, wild police gunfire in the middle of that
crowd (an entirely accurate assumption on their part).
Even so, a substantial number of people
did see the beginning, the action, and the aftermath of the shooting. The
accounts of many of these witnesses are accurate, at least in part. Some
are wildly, almost comically, inaccurate, and others are almost completely
accurate.
How can the police know—how can
anyone know—which witnesses to believe? In this
case and any other, the best indicators are independent physical evidence and
common sense. Is what witness A says physically possible? Can it
fit into the independently established and accurate time frame? I’ll
discuss this in more detail shortly.
There are a wide variety of other
factors to consider as well. Was the witness
actually in a position to see what they say they saw? Do they have
particular prejudices that might influence their statements? A number of
witnesses in this case gave fulsome, even fawning praise of Metro and the
officers that killed Erik Scott. Any competent investigator should be
particularly careful about accepting such testimony.
Another important factor is the very
nature of the situation. Many people
will naturally assume that if Scott was shot by the police, he must have had a
gun, a factor that many in the crowd were reinforced in believing by rumor
rushing through the crowd as they asked why the store was being evacuated as they
were leaving the Costco that day (store employees told customers there was a
man with a gun in the store). This factor alone could lead people to “see”
a gun in Scott’s hand when no gun was present, or turn a cell phone on the
ground near his body into a gun. It could—and did—turn any and every arm
or hand movement on his part—in the perception of some witnesses–when
challenged by Officer Mosher, into a deadly threat.
Another factor is the possibility of
undue influence by Metro. Many of Metro’s
handpicked witnesses have Metro ID numbers, indicating the possibility of
records, or perhaps active investigations. We know that Metro is not only
capable of, but appears to engage in, the intimidation of witnesses, as even in
the Scott case, they harassed Samantha Sterner with multiple chickenshit
traffic citations, and engaged in similar abuses with many that dared to
display a magnetic Erik Scott memorial ribbon on their vehicle (Update 7, Update 7.2 and Update 8 provide in-depth information). Metro also engaged in a completely
unethical, unprofessional, and potentially criminal, interviewing tactic with
virtually every witness subjected to a taped interview.
INTERVIEWING RESPONSIBILITIES:
Patrol officers and detectives have
very different responsibilities. In a case like
the Scott shooting, patrol officers must identify each and every potential
witness. It doesn’t matter if they saw only a portion of the action, it’s
vital that anyone who saw anything be discovered and if possible, kept at the
scene. If they cannot be kept there–they’re not under arrest, after
all–their complete contact information must be gathered and preserved so
detectives can follow up later. The police never know when the smallest
fragment of information might provide a break in the case, or the key to
solving it.
Patrol officers are also commonly
responsible for having each witness complete written statements on the
spot. They all carry forms for this specific purpose, and there are
specific protocols for how those forms must be completed. Those common
protocols were repeatedly broken in this case. The patrol officer’s job
is to handle things until detectives can arrive, and then, as quickly as possible,
to get back on the street to handle other calls.
Detectives are responsible for the
in-depth investigation that follows the patrol officer’s preliminary
investigation. It is their job to re-interview every witness from whom
the patrol officers obtained written statements and to find and interview
everyone they did not. It is their job to dispassionately gather and
analyze all evidence and come to a just conclusion, which can lead to not
filing criminal charges—virtually always the case when a Metro officer might be
charged–or the opposite.
In professional agencies, polices and
procedures are in place in the interviewing process to ensure that statements
are not influenced—inadvertently or on purpose—by investigators. It is
ridiculously easy to do this. Most people are at least somewhat
intimidated by the police and many have a subconscious tendency to try to
please them. At the very least, they will try to give the police what
they think the police want.
INTERVIEWING TACTICS OF THE
UNPROFESSIONAL AND CORRUPT:
In agencies that are less than
professional, agencies—arguably like Metro—that are primarily interested in
supporting the pre-determined narrative and in protecting their own hides,
there is a common—and unethical, unprofessional, and potentially criminal—technique
for statement manipulation. Why criminal?
Subordination of perjury, a felony which means encouraging others to lie.
It works like this: a
detective sits down with a witness and conducts an interview, an interview they
tell the witness is being recorded for later transcription. But when the
interview is over, the detective says: “oh no! That darned tape recorder
didn’t work again! I’m sorry, but we’ll have to do the interview over.”
Why would a detective do this? It allows them the opportunity to hear, off the record, everything
the witness knows. During the second interview, they are prepared to
shape the interview by failing to ask certain questions, by failing to bring up
certain topics, by cutting off certain answers, and by channeling the questions
and answers to fit their narrative rather than gathering all the facts.
If a witness is silly enough to try to bring up things the Detective doesn’t
want on the record, he’ll interrupt, confuse and obfuscate the conversation,
and will certainly fail to ask the kind of rational and necessary follow up
questions the statements of the witness would provoke in any competent
investigator truly interested in the truth. And of course, that darned
tape recorder can fail–again–without warning.
Another tactic commonly employed—and
a dead giveaway to professionals—is taking far too little time to conduct a
competent interview. The interview of Officer William Mosher—the man primarily responsible for the death of Erik Scott—took only 15
minutes. The Interview of Officer Joshua Stark—who fired one round into Scott’s back as he fell, face-first to the
ground—took only 10 minutes. The interview of Officer Thomas Mendiola—who fired four rounds into Scott’s back and was later fired for giving a
firearm to a felon—also lasted only 10 minutes. Only two other officers
were interviewed—Dustin Bundy (four minutes) and Dean Vietmeier (two
minutes). Their interviews are discussed in the same link as Mendiola.
In my police career, I routinely conducted
interviews lasting an hour and more, even for misdemeanor crimes. A ten
or fifteen minute interview of an officer who shot and killed a citizen is, by
itself, an enormous red flag. No one, not Sherlock Holmes himself—could
possibly come close to conducting a competent, professional and minimally
complete interview in such a ridiculously brief span of time. Even
establishing a rudimentary timeline of the event would take considerably
longer. However, if the detectives were interested only in checking
certain boxes in the predetermined narrative, 10-15 minutes would be
sufficient.
During the trial-preparation process for
the first civil suit in this case (which was dropped by both parties), a great
deal was discovered when witnesses initially interviewed only by Metro were
professionally interviewed by investigators working for the Scott family, or
were deposed. Virtually every witness noted that Metro detectives used
the “that darned tape recorder didn’t work again,” ploy. If their
equipment was so defective, one might expect them to get working gear.
Witness and Las Vegas Public
Defender Howard Brooks, was one of the prosecution’s handpicked Inquest
witnesses. He did not stick to the narrative and the
prosecutor treated him as a hostile witness, attacking him repeatedly on the
stand—his own witness in a hearing with no adversary. Here is some of his
testimony from that Inquest:
And I had one purpose in talking to
this officer, and that was to avoid what I see over and over again in murder
cases. And that is…that police always get a statement that’s off the
record, and it allows statements to be characterized in all sorts of ways
because there is no record of it.
I told the officer, ‘Look, I want to
give a statement, but I want it to be on the record. I want it to be
taped.” …he said ‘No problem.’ I gave a very detailed statement.
And then at the end, he goes, ‘well, my tape machine wasn’t working so we’ll
have to do it again.
WHO TO BELIEVE?
How can the police—or a jury—know
whose testimony is most credible? Who should be
believed and who must be ignored? The best way to proceed is to believe
those whose statements accord with common sense and with independent evidence.
Is what a witness says reasonably
possible? Some slick lawyers will try to convince people that anything is
possible, but clearly, “anything” is not. Monkeys will never fly out of
my posterior, I will never be transmogrified into a beautiful woman—even
intensive surgery wouldn’t help there—and a tiny gun at home on Scott’s
nightstand cannot simultaneously be in his right front pocket at the Summerlin
Costco to be shot and damaged by Off. Mosher.
Does the evidence support the statement of
a witness, or contradict it? I’m not suggesting that the witnesses are
knowingly lying. I have no evidence to believe that. However, I do
know how badly wrong witnesses statements can be–even when given in good
faith–and how easily they can be manipulated without the knowledge and consent
of a witness. What follow are some general indicators of what I’m saying.
GENERAL TRENDS IN THE METRO INTERVIEWS:
Many witnesses to the Scott shooting
later contacted Scott’s attorneys and told them Metro refused to interview
them. Despite their telling officers at
the Costco after the shooting that they were eyewitnesses and wanted to give
their testimony, they were told to go home and that Metro would contact them if
they were needed. The officers did not take their names or contact
information; there was no way they could be contacted.
This is an indication of gross
incompetence, cherry picking, or both. Any supervisor for whom I ever
worked, learning I had done that would have visited swift and terrible
punishment upon me, and rightfully so. The last thing any professional
police force wants the public to think is that they are not interested in
hearing citizens who want to give them information relating to police matters
and crimes. Competent agencies spend a great deal of their time trying to
win the trust of the public and convincing the public to talk to them.
This is particularly true in an officer-involved shooting where professional
agencies are very careful to avoid even the appearance of
impropriety. Refusing to take the statement of a citizen would certainly
give that appearance. On the other hand, a police force interested only
in supporting the narrative by handpicking specific witnesses would be expected
to do exactly that.
Attorney Brooks was a rare
exception: he would not take “no” for an answer,
more or less forced Metro to take his statement and later turned the tables on
them during the Inquest.
The Encounter: We know beyond any doubt, by means of the 9-11 recording of Costco
Security Employee Shai Lierley, which recorded Mosher’s shouting and the
gunshots, that from the moment Off. Mosher began yelling contradictory commands
at Erik Scott until the first gunshot, which touched off the fusillade of seven
police bullets in the middle of a crowd of hundreds, only two seconds
elapsed. However, Metro’s handpicked witnesses could not remotely
agree. Their estimates of the time involved ranged from five to 30
seconds. One witness suggested that Scott actually engaged in a lengthy
argument with Mosher; no other witness said anything remotely like this.
Most, in fact, did not see or hear Scott say anything to Mosher—he didn’t have
time.
The Gunshots: Independent evidence (to whatever degree Metro can be trusted) suggests
a total of seven rounds were fired, but the estimates of witnesses ranged from
two to five and various vaguely stated numbers. Some saw Mosher shoot
Scott, some saw Stark and Mendiola shoot Scott, but none saw Scott shoot at
anyone.
Scott’s Gun: As I proved in Update 19, Metro’s own evidence and actions clearly indicate that Erik Scott could
not have drawn his Kimber .45 and surely could not have dropped it on the
pavement where he was shot. Even so, a few witnesses were sure Scott not
only drew a gun, but pointed it at Mosher. However, even they could
not provide a clear description of the gun they believed they saw. A few
believed Scott might have had something in his hand, which might have been a
gun. A few thought he might have been holding a gun in a holster.
At least one thought Scott was holding a holster—there was no mention of
a gun—and several believed they saw something in his hand—and something on the
ground near his body, something described as a small gun, a gun rug, something
black, something brown, even “a clip.” What is remarkable is the number
of transcripts that avoid any mention of anything on the ground near Scott’s
body.
Attorney Brooks again provided
interesting—and from the evidence, accurate—Inquest testimony on this topic:
…at this point, Erik Scott is falling
to the ground on his face. He is either on the ground, or he was falling
to the ground, and officers two and three [Stark and Mendiola] commence
shooting him as he’s falling on the ground on his face…
If the officer one [Mosher] had not
killed him, it seemed to me clearly that officers two and three were making
certain he would not be alive… I then circle around beside the first officer,
trying to look at the body… I don’t see a gun anywhere around him. That’s
what I was looking for. But I could see the bullet holes in the back.
Mosher and Scott’s Actions: One area where most witnesses agree is that all three officers
present—Mosher, Stark and Mendiola—had drawn their handguns long before Scott
and Samantha Sterner walked out the front door of the Costco. The
majority of witnesses also agree that Erik Scott was behaving
unremarkably. He was just another of the several hundred Costco Customers
calmly walking out of the store that day in response to the Costco evacuation
request. Most who actually saw the beginning of the confrontation also
agree that when confronted by Mosher, Scott was surprised. A few thought
that when Mosher pointed his weapon at Scott and began to yell at him, Scott
appeared to be “agitated.” This might be a believable observation for
Erik Scott and virtually anyone else.
NOTE: Police
officers normally do not draw their weapons unless they are in imminent, deadly
danger, and most agencies have rules governing this issue.
A few witnesses suggested Scott drew a
handgun in one way or another. More saw only Scott moving his right hand
in one way or another, some saw it moving toward Scott’s back, others his
front, and one saw both hands moving toward his waist at the front of his body.
One witness thought Scott was only “gesturing” with his hands, and another witness
thought Scott might have pointed a gun at Mosher with his left hand.
Scott was right handed and his handgun was holstered behind his right hip.
Dr. Edward Fishman–a physician–who gave both a written statement and a taped interview,
never saw a gun in Scott’s hands, but did see him reach for his side and
possibly pull up his shirt slightly, which caused Mosher to shoot him.
During his inquest testimony, Fishman said:
It [Mosher's yelling at Scott] was all
very confusing. I was hearing commands, “Drop it, drop it’ is what I
thought I heard. And there was nothing in Mr. Scott’s hand to be dropped.
Fishman, like Brooks, carefully looked for
a gun on the ground near Scott’s body and saw none.
One witness—a minister—argued that Scott
actually pounded the customer service counter with the butt of a chromed gun to
get the attention of Costco employees and came out of the Costco with that gun
in his hand. Not only did the employee who waited on Scott fail to back
up that wild statement, there is no doubt that Scott had only his Blackberry in
his right hand when he left the Costco. That is the only thing on the
ground near his body after he was shot.
Another interesting omission is that
detectives failed to ask witnesses who believed they saw a gun on the ground
near where Scott had been shot precisely when they made that observation. As my theory of the case indicates,
Scott’s .45 was found in the ambulance on the way to the hospital. Even
Mosher’s statement reveals he did not actually search Scott after handcuffing
him, and he did not find Scott’s .45 (or any gun) which was still in its
holster, inside his waistband behind his right hip. Mosher also did not
find the Ruger in Scott’s right front pocket and his interview says nothing
about it, despite the fact that Mosher claimed he was worried that Scott might
be wearing body armor (under a t-shirt in Las Vegas summer weather) or another
gun). It would have taken only about 15 minutes once the .45 was
discovered in the ambulance to retrieve it and place it at the scene, making a
time frame for such observations an important matter. Of course, anyone
working to support the narrative would ignore this important fact and assume
the gun always had to be present.
Mosher’s Commands: Witnesses had a wide range of beliefs about these commands, which again,
they felt took from five to 30 seconds. Some could not hear anything
being said, and others heard only a tiny portion. Some heard things
Mosher clearly did not say. Some, despite these handicaps, felt Mosher was
giving Scott clear orders, which he must have been refusing to obey. Even
Officers Stark and Mendiola said they had no idea what Mosher was saying, but
were sure it must have been commands which Scott was disobeying. They
also said they had no idea who fired, so of course, they both had to shoot
Scott.
Mosher actually said:
Put your hands where I can see them
now; drop it, get on the ground; get on the ground.
If Dr. Fishman and Mr. Brooks can be
believed—and independent evidence supports them, not Metro—Scott had nothing in
his hand apart from his Blackberry. Even Mosher, in
his taped interview, admitted that only a few hours after killing Scott, he had
no idea where Scott’s hands were. If he did not know where Scott’s hands
were, why was he ordering him to present his hands? If Scott never had a
gun in his hand—a hand which location Mosher did not know—why was Mosher
ordering him to drop “it?” Drop what? And
better yet, why, fractions of a second later, if Scott was actually threatening
him with a gun, did Mosher suddenly develop the urge to forget about telling
Scott to drop the gun, and instead order Scott to get on the ground?
Remember that the best evidence, the Costco security camera feed, has
vanished under highly suspicious circumstances.
Even if Scott understood and could process
each of these contradictory commands in the span of two seconds, he could not
possibly have had time to respond to one, let alone three distinctly different
commands demanding three distinctly different actions. No matter what
Erik Scott did—or didn’t do—he was dead the moment Mosher laid eyes on him.
Several of Metro’s handpicked witnesses
said Scott did not move and only stood stock still before being shot.
Several said he raised both hands in a sort of common “surrender” gesture.
Common sense and independent evidence suggests these witnesses should be
taken seriously.
FINAL THOUGHTS:
Next Monday, I will post Update
20.2, which will provide representative summaries and excerpts from some of the
interviews to which I’ve alluded in this article. In Metro’s files, they run more than 500 pages—Inquest transcripts
and depositions run hundreds more, so there is simply not space to include them
all, or even a substantial portion.
Even so, some interesting trends did
develop. A surprising number of witnesses
were upset at Metro for starting a circular firing squad in the midst of a
large crowd of innocents. A somewhat smaller number expressed amazement
that innocents were not shot by the police. Bystanders did not escape
uninjured. An elderly woman in a wheelchair, trying to duck for her life,
tumbled from her wheelchair onto the pavement, badly scraping her arm.
Doubtless others suffered cuts and scrapes, but Metro’s reports make no mention
of this. A few witnesses actually took the officers to task for failing
to simply let Scott walk into the parking lot, away from innocents, before
approaching him.
What is remarkable about the
transcripts is the methods used by Metro. Many statements mention nothing about a gun, or a gun on the ground near
Scott’s body. These are two of the most important facts in this case, yet
detectives appear to have simply forgotten to bring them up to many
witnesses. In many interviews, when a witness was clearly about to stray
from the narrative, detectives immediately changed the subject, dropped that
line of questioning, interrupted, argued with them, or otherwise stopped
them. The same is true for a wide variety of important factors, factors
any competent investigator would have been sure to cover in great depth and
detail.
In many respects, the interviews–so poorly
done are they–raise far more questions than they answer, which is never a good
thing in any investigation.
More than anything, I continue to be
amazed by the incredibly poor quality of police work in this case. Either Metro is systemically incompetent, or they are so corrupt they
are willing to appear to be hopelessly inept because the truth is far, far
worse.
As always, I’m certain readers are more
than capable of making up their own minds. I hope to see you again a week
from now.
