Denver Diner Case: Richard Rosenthal Deposition

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 1 of 91
EXHIBIT 1

***CONTAINS CONFIDENTIAL TESTIMONY*** AGREN BLANDO COURT REPORTING & VIDEO INC 1
CONTAINS CONFIDENTIAL TESTIMONY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 11-cv-2394-WJM-CBS ________________________________________________________ VIDEOTAPED DEPOSITION OF RICHARD ROSENTHAL, VOLUME I April 9, 2012 ________________________________________________________ ANA ALICIA ORTEGA; KELLY BOREN; KRISTAL CARRILLO; SHARELLE THOMAS, Plaintiffs, v. THE CITY AND COUNTY OF DENVER, a municipality; OFFICER RICKY NIXON, in his individual and official capacity; OFFICER KEVIN DEVINE, in his individual and official capacity; OFFICER JOHN DOE ONE, Denver Police Department Internal Affairs Bureau; OFFICER JOHN DOE TWO, Denver Police Department Internal Affairs Bureau Police Officer, in his/her individual and official capacity, Defendants. ________________________________________________________ APPEARANCES: RATHOD MOHAMEDBHAI, LLC By Qusair Mohamedbhai, Esq. Siddhartha Rathod, Esq. 1518 Blake Street Denver, Colorado 80202 Appearing on behalf of Plaintiffs SENTER GOLDFARB & RICE, LLC By Thomas S. Rice, Esq. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Appearing on behalf of Defendant City and County of Denver
3
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit 60 4/11/2011 letters to complainants from Richard Rosenthal Exhibit 67 Citizen Oversight Board A Year in Review 2011 220 174 Exhibit 39 E-mail string, top e-mail dated 2/17/2010 from Richard Rosenthal to Marcus Fountain, copying others, Subject: Re: Case # P200907045 Exhibit 43 Fourth Quarter 2011 report by the Independent Monitor 145 Exhibit 76 Subpoena prepared by 235 Mohamedbhai, 04/09/2012 EXHIBITS PREVIOUSLY MARKED INITIAL REFERENCE Exhibit 24 1/19/2011 memorandum from David 150 Quinones to Michael Battista Pursuant to Notice, and the Federal Rules of Civil Procedure, the videotaped deposition of RICHARD ROSENTHAL, VOLUME I, called by Plaintiffs, was taken on Monday, April 9, 2012, commencing at 8:07 a.m., at 1518 Blake Street, Denver, Colorado, before Lisa Persichitte Reed, Certified Realtime Reporter and Notary Public within and for the State of Colorado. INDEX VIDEOTAPED DEPOSITION OF RICHARD ROSENTHAL VOLUME I EXAMINATION BY: PAGE Mr. Mohamedbhai 5 EXHIBITS INITIAL REFERENCE
159
2
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BRUNO, COLIN, JEWELL & LOWE, P.C. By Brian R. Reynolds, Esq. 1999 Broadway, Suite 3100 Denver, Colorado 80202 Appearing on behalf of Defendant Officers Nixon and Devine Also Present: Nick Borgia, CLVS
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
4
PROCEEDINGS THE VIDEOGRAPHER: We're on the record at 8:07 a.m. Today is April 9, 2012. And this begins the videotaped deposition of Richard Rosenthal, taken by the plaintiff, in the matter of Ana Alicia Ortega, et al., versus the City and County of Denver, et al. We're located at 1518 Blake Street, in Denver, Colorado. The court reporter is Lisa Reed, and the videographer is Nick Borgia, CLVS. Counsel will now introduce themselves and the parties they represent, beginning with plaintiffs' counsel first. MR. MOHAMEDBHAI: Qusair Mohamedbhai and Siddhartha Rathod from the law firm of Rathod Mohamedbhai on behalf of all the plaintiffs. MR. RICE: My name is Tom Rice. I'm appearing today on behalf of the City and County of Denver. MR. REYNOLDS: Brian Reynolds appearing for Ricky Nixon and Kevin Devine. THE VIDEOGRAPHER: Will our court reporter please swear in the deponent. RICHARD ROSENTHAL, VOLUME I, being first duly sworn in the above cause, was examined and testified as follows:
Court Reporting Videography Digital Reporting Transcription Scanning Copying Denver (303) 296-0017 Boulder (303) 443-0433 Colorado Springs (719) 635-8328 Greeley (970) 356-3306

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXAMINATION BY MR. MOHAMEDBHAI: Q Good morning, Mr. Rosenthal. A Good morning. Q We introduced ourselves briefly, but I'm Qusair Mohamedbhai. This is Siddhartha Rathod. We represent the plaintiffs in a lawsuit against the City and County of Denver. We refer to the lawsuit as the Denver Diner incident. So if I speak about the Denver Diner incident, will you know what I'm talking about? A Yes. Q I think I know the answer to this question, Mr. Rosenthal, but have you ever had your deposition taken before? A Yes. Q How many times? A Actually, not that many, maybe three. Q Have you ever had your video deposition taken before? A Yes. Q All right. Well, the rules -- can you tell me what circumstances you had your deposition taken? A Oh, boy, let's see. One time when I was a prosecutor in Los Angeles County. It was a defendant I was prosecuting that was suing his accountants. There
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
7
question, even if you know where I'm going with it, before you start your answer, and I will endeavor to do the same with you. A Okay. Q The next rule is that audible -- you must answer audibly. A All right. Q Head gestures, "mm-hmms," and whatnot cannot be accurately transcribed. So if I catch you, I may prompt you for a "is that a yes," "is that a no," something like that to clean the record. I'm not trying to be rude. It's just an attempt to clarify your answer. A Understood. Q Breaks are determined by the collective. We have an obligation for lunch, and I think we'll be breaking about 11:40. And then we'll resume about 1:30, Mr. Rice, about that. Anytime you need a break, the restroom is down there. You just have to let us know. I almost immediately accommodate. There is a loosely enforced local rule that says if there is a question pending, you must answer the question, so you can't use a break to sort of avoid answering a question. If at any time you want to consult with your
6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was another time I was in Portland, Oregon, and I was deposed on a case related to the LAPD Rampart scandal. And then the only other one I remember was early on, as Independent Monitor in Denver, where I was deposed relating to an in-custody death. Q Which case was that? A It involved a death -- a deaf inmate. It was early on in the jurisdiction of the program, and I cannot remember the individual's name. Q How long were you the Independent Monitor for the City and County of Denver? A Six and a half years. Q Do you remember approximately what the start dates and stop dates were? A I believe I started July 8th or so of 2005, and finished on January 8th of 2012. The July date might be off by one day or so. Q There are some standard rules of a deposition that I'm sure you've heard before being deposed previously. The most important rule, sir, is that we not speak over each other. As you can see, we have a court reporter here. Her name is Lisa Reed, and she is transcribing everything we say, but we simply just blow her up if she can't -- if we talk over each other. So we must -- please allow me to finish my
8
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney, who I presume is Mr. Rice -- well, let me ask that. Is Mr. Rice your attorney in this deposition today? A Not that I'm aware of. MR. RICE: I'm not his attorney. I'm the City and County's attorney, but of course, I've spoken to him in his capacity as a former city official. I would assert privilege of those communications on that basis, but I don't represent him individually as a deponent. MR. MOHAMEDBHAI: And you don't represent him under the umbrella of representing -- you don't represent him under the umbrella of representing -MR. RICE: I do not represent this individual. I may represent his office as Independent Monitor, and I intend to, as you well know, assert certain privileges in the event that you ask questions that intrude on those privileges, but I do not represent Mr. Rosenthal. He is a former city official. MR. MOHAMEDBHAI: Okay. Q (BY MR. MOHAMEDBHAI) Well -A And I have not specifically asked for -- I assume I would be entitled to personal representation upon request, but I have not made that request. Q Sure. And you understand you're not being

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sued in this in any way? A Exactly, which is why I did not request an attorney. Q Could you please state your name and spell it for the record, please. A Sure, Richard -- full name? Q Yes, your full -- could you please state your first and last legal name for the record, please. A Richard Rosenthal, last name is R-o-s-e-n-t-h-a-l. Q And where do you currently reside? A I have dual residency right now, I suppose, but primarily reside in Vancouver, British Columbia. Q What is your address? A I really don't want to give out my -MR. RICE: What's the point of that? MR. MOHAMEDBHAI: In case we ever need to reach him. A I can easily be reached on cell phone, which I've provided you with previously. Q (BY MR. MOHAMEDBHAI) Okay. MR. RICE: I am sure you would be happy to provide your office address, right, in Vancouver? THE DEPONENT: Sure, and it's -MR. MOHAMEDBHAI: That would be fair.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
11
A Well, there were, at the time, significant concerns relating to particularly uses of deadly force by the Denver Police Department. There were two shootings in particular that caused great public consternation and garnered the attention of the new Hickenlooper administration. One was a shooting of Paul Childs, a juvenile African American disabled person. The other was the shooting of Frank Lobato, who was unarmed at the time. Manager of safety, Al LaCabe, took office under Mayor Hickenlooper. And between the mayor and the manager's office, they decided that a more robust form of civilian oversight of law enforcement was necessary to ensure public confidence in the police and the work they did and to ensure the public was confident that officers would be held accountable, particularly for uses of deadly force, but also to include uses of force and any other instant of misconduct. The Monitor's office was created by ordinance. It was -- it required a charter change in order to ensure that the Monitor had access to Garrity-protected information provided by officers during the course of internal investigations. And upon the creation of the ordinance and
10
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Hold on. I don't have it memorized yet. The office address, hopefully as of July 1st of this year, I forget where I put it here, bear with me. The Canadian addresses are a little more complex than U.S. addresses. MR. RICE: It doesn't stop there. A Yeah. Hmm, try again. I know I put -there it is, okay. It is the Independent Investigations Office for British Columbia. Address is 13450 102 Avenue, Surrey, BC, British Columbia, ZIP is V3T 5X4, and it's Suite 12000. Q (BY MR. MOHAMEDBHAI) They call it postal province. A Oh, is that -- I'm still learning. Q They don't like it if you called it ZIP. They think it's American. Mr. Rosenthal, you are the former Independent Monitor for the City and County of Denver? A Correct. Q And you started your office in approximately July of 2005? A Correct. Q What's your understanding as to why the Office of the Independent Monitor was created for the City and County of Denver?
12
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the charter change, then the office was funded and hiring was commenced. Q Were you the first Independent Monitor for the Office of the Independent Monitor for the City and County of Denver? A Yes. Q What is -- strike that. Mr. Rosenthal, what is your background in public safety? A I started as a deputy district attorney in Los Angeles County in 1986. I was a prosecutor for 15 years, including a short stint in the United States Attorney's Office for the Central District of Los Angeles where I was an assistant U.S. Attorney for a short period of time. I worked in the Central Trials Unit prosecuting felony cases for my first several years. I then moved on to the major fraud unit where I prosecuted large-scale -- investigated and prosecuted large-scale major fraud cases. I did that for several years. I then helped assist in the creation of the Workers' Compensation Fraud Division where I was the assistant head deputy, did that for several years. I was then transferred to the Special Investigation Division of the Los Angeles District Attorney's Office,

***CONTAINS CONFIDENTIAL TESTIMONY*** AGREN BLANDO COURT REPORTING & VIDEO INC 13 15
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
which was charged with investigating and prosecuting public officials, including judges, elected officials, and police officers. I was the prosecutor responsible for uncovering the LAPD Rampart scandal, which then resulted in my assignment to the special prosecution team where I was named, eventually, as the deputy in charge of what we call the cleanup team, but in the -more law enforcement parlance, it's called the "dirty team" where you go inside Internal Affairs, review investigations, delete or redact information that's compelled or information that's learned from compelled statements, and turn it over to -- turn it over to a team of trial prosecutors who made the filing decisions on the Rampart cases. After Rampart, I was hired by the city of Portland, Oregon, to be their first -- or to create their independent police review division of the city auditor's office where I served as the director from 2001 to 2005. And then I was hired by the City and County of Denver to be their first Independent Monitor until January of 2012, at which point I began my job as the chief civilian director of the Independent Investigations Office of British Columbia, which is
14
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A It started with a -- sorry, it's so arid here. I'm not used to it anymore. It started with a national recruitment that was coordinated by a selection committee that the ordinance requires. The selection committee consists of the chair of the Citizen Oversight Board, the head of the Career Service Authority, a retired judge, as appointed by the mayor, a member of city council, as chosen by the city council president, and an expert in oversight of investigations or conducting internal investigations, as appointed by the mayor. That group conducted a national recruitment. I will point out that I originally was asked to be the expert to select -- help select the Monitor because I initially was asked whether I had an interest in the position, and I said no. Once the position was then -- the recruitment came out and I reviewed it for purposes of being on the committee, I realized that the City had basically -- I previously had spoken with the deputy city attorney providing advice and consult for the creation of the office when I was in Portland. And the way I used to refer to it publicly is that I told them the good, the bad, and the ugly of the Portland program. And they had taken the good, gotten rid of
16
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
also a brand-new organization. Q As the Independent Monitor for the City and County of Denver, who did you report to? A That -- according to ordinance, I basically reported to the mayor, directly to the mayor as a mayoral appointee. As a matter of practice, under Mayor Hickenlooper, I reported to the chief of staff, same was for Mayor Vidal. For the new mayor, I reported to the deputy chief of staff. In some -- one of the things that was interesting was that neither the chief of staff nor the deputy of staff was really -- deputy chief of staff was really my boss, so to speak. You know, I was a mayoral appointee. And in the end, if I had a problem, I could always, I assume, you know, appeal it to the mayor directly. Q Did your appointment as the Independent Monitor for the City and County of Denver require a vote by city council? A Yes. Do you want me just to explain the -I'll use -Q Sure. Let me ask the question then. Could you please explain to me the process to become appointed as the Independent Monitor for the City and County of Denver.
the bad, and prettied up the ugly. So I felt that they had created a true national model in Denver through the Independent Monitor's office. So at that point, after speaking to my family, I called them up and I said, "You know what, I'm not interested in assisting you in selecting a Monitor anymore. I'm interested in applying." So I withdrew from the selection committee. I was then brought to Denver to interview with the selection committee, along with, I believe, a dozen other applicants who were recruited nationwide. That committee then is required by ordinance to pick up to three finalists to go to the mayor for selection. The committee did, in fact, send three finalists to the mayor. The mayor then created a process -- I have to learn my Canadian -- by which the three candidates would be vetted, which included interviews with the safety committee of the city council, the African American committee or mayor -- and I don't recall the exact name, but the mayor had an African American advisory committee, a Latino advisory committee, the Citizen Oversight Board, as well as a group of union officials, and then also the manager of safety. So there was a period of one or two, it

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appointment as the Independent Monitor? A Well, that would have been by letter, you know, letter of resignation, and that would have been after the order and counsel was signed appointing me as of January 8th, as we call it CCD, chief civilian director. So upon the order and counsel being signed by the premier -- or I'm sorry, the lieutenant governor, that is when I sent in my letter of resignation. I will say, just, you know, because I can see where you're going, I also did -- I had discussions with the chief of staff before early December, so it would have been -- it was sometime in November where I informed her that I was one of the finalists for the CCD position and I was considering taking that job, if offered. Q Why did you resign your appointment as the Independent Monitor for the City and County of Denver? A There are quite a few reasons. One -- the primary reason was because the offer from British Columbia was remarkable. It is one of the only agencies in the world that has civilians conducting investigations of -- criminal investigations of police. It has provincial responsibility, which is remarkable, with jurisdiction over 13 municipal agencies, as well
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
might have even been two days -- no, maybe it was one, but a series of interviews with all of these groups, who then gave input to the mayor. The mayor then selected me as the finalist that he wanted to proffer to city council. The Monitor is the only mayoral appointee who requires council confirmation in order to take office. So I was then presented to the -- my application was presented to the safety committee, passed that, presented to the city council in its entirety. The city council voted in favor of the appointment, and I was thus confirmed and named Monitor. An interesting point in the process is that when mayoral administrations changed, and each mayor did not seem to understand this initially until I explained it, I was the only appointee who did not lose his position as a result of a change in mayoral administration. My appointment continued without further appointment unless or until the mayor chose to terminate me as Monitor, which he had the power to do, but he first had to consult with the Citizen Oversight Board and city council before making that decision, you know, that never happened. But that would have been
18
20
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as the Royal Canadian Mounted Police. It takes me back to my roots of investigating cases involving death and serious harm and eventually is likely to turn into an external criminal investigations bureau investigating all criminal allegations against police. The pay is significantly higher than the City and County of Denver was offering, with no furlough days, including numerous other benefits including better retirement, vehicle, you know, a new vehicle, police powers. Just basically, it's the creation of an office of -- almost like no other, and an incredible professional opportunity. In addition, the reality was that the situation in Denver was not good; that I did not believe -- I did not have the support of the manager of safety, as I did under Al LaCabe when he was manager of safety, which allowed the Independent Monitor's office to be extraordinarily effective during that period of time; was not certain of the level of support I had from the mayor's office, who appointed the manager of safety and, therefore, appeared to be in strong support of the manager. When I informed the chief of staff of the interest from British Columbia in my position, there was no attempt made whatsoever to ask me to stay.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
the process by which the Monitor could have been removed. Q When did you give your notice to the City and County of Denver that you would be resigning your appointment as the Independent Monitor? A Formal notice or -- I'm not sure I understand what you mean by "notice." Q Was there a formal and then an informal as well? A Well, formally, it was by letter, and that was -Q All right. So let me -A -- in December, you know, towards mid-December. Q So let me break this down then. When did you informally inform the City and County of Denver of your intent to resign your appointment as the Independent Monitor? A The point at which I was specific would have been early December, basically, the day before it was announced by the premier of British Columbia that I was going to be named chief civilian director of the independent investigations office. Q And when did you formally inform the City and County of Denver of your intent to resign your

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 than the chief of staff or maybe even including the chief of staff, the most significant appointment made within the cabinet by the manager of safety -- or I'm sorry, by the mayor. The manager of safety has enormous -- has to have enormous support from the mayor, and the manager of safety has easy -- you know, immediate access to the mayor and has the ability to really impact the mayor's opinion of the Monitor's office and the work it does. The nature of the work of the Monitor's office is not one where you make a lot of friends if you are doing your job right. If you are doing your job right, loyalties are irrelevant. All that matters is the case, the circumstances of the case, and making sure you're going in the right direction based upon the facts and circumstances, and sometimes, obviously, to the great anger of the union and potentially even of various members of the command staff or the chief. Under Al LaCabe, we had very similar philosophies and goals and desires. And even when I was faced with a great deal of resistance within the departments, the manager's office always, you know, had the Monitor's back. Even when we disagreed, Manager LaCabe would make sure that he would explain why, you know, I wasn't being unreasonable, why reasonable
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Rather, instead, it was a "That sounds like a wonderful opportunity." So basically, I was in a long, drawn-out battle with the police union, which did not look to end for a significant period of time. And the mayor's office was insistent on creating a review of the Monitor's office ordinance, which I did not believe was necessary, which appeared politically to be engendered towards weakening the Monitor's office and, in particular, taking away the Monitor's ability to communicate with the media about issues of significance, in essence, taking away the bully pulpit from the Monitor's office. So my feeling at that point was that another person might be in a better position to take the position without the baggage that I had in the sense that I had pushed for disciplinary forums, dramatic disciplinary forums, in the Denver Police Department; and that the push back had been intense, the politics was equally intense; and in essence, I was not certain that I would be able to have a positive impact on the professionalism and integrity of the process in Denver as I had over the last five and a half years. Q Let's break some of that down, sir. When you stated that you felt that you did not have the
22
24
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 people could differ, and what the role of the Monitor's office was. When you have a manager who is not supportive of the concept or, you know, is intent on undermining the Monitor program, potentially because they don't want to be criticized, that, then, creates a very difficult position where every decision a Monitor makes, you have to be wondering whether you're going to have a job the next day, and that's not a good way to do business, obviously. In Portland, Oregon, there was civil service protection for the director of the independent review division, so that was not a concern, plus the director of the IPR reported to an independently elected official, the auditor, as opposed to reporting to the mayor. Here, there is a benefit of reporting to the mayor in that you have immediate access to the mayor, but that ended up not being really that true because you have a strong mayor in Denver who is extremely busy with a lot of other issues and, frankly, my meetings with the mayor were extraordinarily few and infrequent. And the only way I could get to the mayor was through the chief of staff, whereas the manager of safety has much greater access and ability to influence the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
support of the manager of safety anymore, which manager of safety are you speaking of? A That's Martinez. Q Did you have support from former manager of safety Charley Garcia? A Initially, yes. Towards the end, no. In particular, Charley was very upset at a DUI report, a report we wrote on Denver police officers not being arrested for impaired driving, and he was very critical of the report and very critical of me personally in that regard. Q Why is support from the manager of safety and the mayor important in order for the Independent Monitor to function and achieve its goals? A The problem is that the Independent Monitor is an at-will employee. Even though the mayor is required to confer with the Citizen Oversight Board, who strongly supported me in my position over the years, and the city council, who also appeared -- the majority of which appeared to strongly support the work we did, the mayor still was empowered to simply confer, disregard the advice or consult of the Citizen Oversight Board and the city council, and potentially terminate the Monitor. The manager of safety is, perhaps, other

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mayor's position, whereas the Monitor is more independent and off on its own island. Q Based on your observations as the former Independent Monitor, what did you see the Hancock administration do to remove the duties and powers of the Independent Monitor's office? MR. RICE: One of the things I want to draw a distinction here is to the extent that you are asking questions about advice or recommendations that he gave, to me, that's protected and we're going to assert privilege to it. If you are just asking for his view and not focusing on any recommendation that he made to anybody, that's a different issue. And so I want to make sure -MR. MOHAMEDBHAI: I'm not asking for his personal view. I'm asking for precisely what my question asked for. MR. RICE: Okay. Well, to the extent you are asking him about recommendations or advice that he gave, then I'm asserting privilege. MR. MOHAMEDBHAI: I'm not asking for recommendations. A I think I can answer it without giving -Q (BY MR. MOHAMEDBHAI) All right. A -- my recommendations.
27
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the mayor seemed very concerned about making sure he did this comprehensive review was of some concern. Obviously, I felt that we would be able to withstand any legitimate review. We then had the auditor's office issue an audit, which was shocking, shockingly incompetent, but particularly shocking because they were making recommendations that the Monitor not be able to communicate with the media except under certain limitations, which was interesting because they are supposed to be an organization dedicated to transparency and accountability. And when I mentioned to the auditor's office, "Well, why shouldn't that apply to your office," they reacted negatively, suggesting that since he was an elected official and I was appointed, that different rules should apply. The problem was that we then asked the mayor's office to -- the mayor's office was asked to respond to the audit and did so in an extremely vague manner. It did not -- no real support for the Monitor's office, other than just saying, again, we're going to do this comprehensive review. When I informed the mayor's office that I was considering leaving, again, what I was specifically told by the chief of staff was, "Well, you know what,
26
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So let me -Oh, I'm fine with the question. Sure. Well, let me clean up the record. MR. MOHAMEDBHAI: Can I see that question again, please. Q (BY MR. MOHAMEDBHAI) Based on your observations as the former Independent Monitor, what did you observe the Hancock administration do to remove the powers and effectiveness of the Independent Monitor's office? A And what I would say is nothing had actually been done as of the point I left. What I saw was I met with Mayor Elect Hancock, I think it was the Friday before he got sworn in. He did inform me that he intended to do a review of the Monitor's office and of the ordinance and that it would be a comprehensive review. I had discussed -- my concern had been that the union had been lobbying during the election, the mayoral candidates, the city council candidates. They had been actively lobbying to try and either, one, have me fired; or two, get the ordinance changed so that my powers and abilities to influence public opinion in the department would be reduced. So on top of that -- so seeing the fact that Q A Q
28
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
we are going to do this comprehensive review. We're going to be bringing in committees, a committee to evaluate the Monitor's office. You may come out smelling like a rose, maybe you won't, we don't know." So, again, the level of support was extremely questionable. After I left, the committee that was named was a committee that looked as though it was simply going to be under the power and influence of Manager Martinez, who had specifically stated that he believed that a Monitor's office was not necessary, that the Monitor's office could be within the manager's office, that he was civilian oversight of law enforcement, and everyone should trust his views and opinions. Obviously, the manager of safety saying this seems to message that that's coming from the mayor's office as well. He would not be saying things like this unless he had the support of the mayor's office in that regard. The committee that was chosen did not include the Independent Monitor, the new, the acting Monitor; included union representation, manager, city attorney, and such -- community representation such that would be extraordinarily weak when faced with Manager Martinez and his positions on the Monitor's office.

31
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And when I would -- when I would get resistance from Internal Affairs to a recommendation that I felt was important and needed to be done, I could take it to the manager, and he would basically tell them to do it. And therefore, over time, Internal Affairs started doing what we were requesting because they knew that in the end, it would be ordered in the end anyway. As such, we were able to improve the integrity of the investigations significantly, and then on the findings -- the benefit of the Monitor's office was we not only had jurisdiction over the citizen-initiated complaints, but also department-initiated complaints, so all complaints. We could look at each and every investigation. We could, at our choice, conduct active monitoring of investigations where we would sit in and listen to interviews and recommend additional questions be asked. So we were the one agency, the one set of people in the entire city who worked on a case from the birth to the death. Everyone else had their component. They either did the investigation or they did their review, and then somebody else did another review and what have you, but we were involved from the beginning to the end.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
So once -- and of course, that was after -that was after I left, but I saw the writing on the wall, so to speak, seemed to be that the mayor's office was not willing to put up the support -- to support and defend the Monitor's office like the Hickenlooper administration, and that all the administration was. Q Does the Office of the Independent Monitor have an affect on law enforcement's conduct? A I think it had an enormous affect on law enforcement conduct over the years. It took time, some cases where it was individual cases, in other cases, we worked on a much more systemic and policy-oriented manner. We -- the way I described it with the reforms, the disciplinary reforms, was Manager LaCabe was driving the bus and I was pushing it, you know, pushing over the speed bumps and what have you. And between -- what basically happened was with Manager LaCabe, he was alone at the beginning, and he had to stand up to recommendations made through the chain of command that were ridiculous, that did not hold officers accountable, did not impose appropriate discipline. And my job was to be the eyes and ears of the manager, and then to assist the manager in ensuring 30
32
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And so we were able to know -- I knew more about these cases than anyone else did, and I was able to give advice and consult. That thus had really significant impact on the decision makers because I knew more than, you know, everyone else who had just their little parts and pieces. We were able to look at it from a more holistic approach. We were able to hire the Police Assessment Resource Center to evaluate deadly force policies and make recommendations for improvements there. We were able to be actively involved in the disciplinary reforms for both the police and the sheriff's departments. We were able to effectively influence, I think in the end, officer conduct through officers knowing that the Internal Affairs process would be of integrity and the policies would be followed. We -- I cannot take credit, for example, for the idea that the number of officer-involved shootings in Denver dramatically decreased from the time we started to the time we -- I finished, but I believe that our impact on policy or our impact on discipline and, you know, impact on training all was part of the larger work in reducing uses of deadly force by Denver Police Department officers. Q (BY MR. MOHAMEDBHAI) Based on your
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
that the investigations were thorough and complete from the beginning, as much as they could be, given some of the concerns we had with the investigations, but that the best possible decisions could occur at the end. We were integral in trying to make sure that officers were held accountable on individual cases and then in identifying policy issues and attempting to improve how policy was written and then implemented to ensure adequate environment for officers to do their jobs. Sometimes my office would recommend not sustained findings or exonerated findings on officers when sustained findings were made because we did not feel they would withstand the scrutiny -(Reporter requested deponent to slow down.) A Sometimes we were concerned that sustained findings would not withstand legitimate scrutiny from the Civil Service Commission, and I would recommend no discipline or lesser discipline. In other cases, we recommended higher discipline, but in the end, what we were able to do was even though -- at the beginning, we were able to dramatically affect the competency of Internal Affairs investigations because, again, we had the support of the manager.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 observations and experiences as the former Independent Monitor for nearly six and a half years, why wasn't the Internal Affairs Bureau sufficiently able to discipline and monitor police officers? MR. RICE: Same objection if you're asking for his recommendations or advice that he gave. If it's not what you're asking, then I don't object. A All right. The -- when we started, what I used to say about Denver -- or the Internal Affairs Bureau of Denver was they did an excellent job on the big stuff and not so good a job on the little stuff. So what I saw was that Internal Affairs sergeants, when they decided that there was nothing to a complaint, they would give it -- they would put it on the back burner, they would give it very little attention. When they thought it was significant, they'd really work. And this was under Chief -- or Commander John Lamb, who really seemed to embrace the concept of the Monitor's office and really seemed to send a message to its people that we were work- -- we are on the same team. The Monitor's office is independent, but we have the same goals, complete, thorough, unbiased investigations, and appropriate resolution. So for the first several years, there are
35
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have to pull the sergeants back and say, "No, this is not an appropriate line of questioning and this is not a way you want to go because it's not fair to the subject officer, this witness officer, what have you." So the first few years, what I found was they could do the job, they did it fairly well. You know, there were always missteps or mistakes here or there, but that's why we were there, to help them try and avoid them. After the DeHerrera case and the resignation of Ron Perea, it changed dramatically. Well, actually, let me take a step back. When Chief Lamb was promoted and Commander Burbach took over, there was a change in Internal Affairs, particularly because of lieutenants. And there was one lieutenant in particular, Lieutenant Marcus Fountain who we refer to as "Lieutenant No." And what we saw was Lieutenant Fountain was sort of trying to take back Internal Affairs from what was perceived as undue influence by the Monitor's office. And for the first time, we were not permitted -- my people and I were not permitted to speak directly to sergeants in Internal Affairs about cases. We had to go through a lieutenant. Any recommendations we had, we had to go through the lieutenants.
34
36
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This slowly, over time, what we saw was the relationship between the Monitor's office and the sergeants grew more and more removed, and there became this culture within Internal Affairs where sergeants were being very resistive to any changes/ recommendations by the Monitor's office. And at the same time we were doing the matrix, which was talking about presumptive termination for lying. And there was enormous resistance about firing officers for lying, which had never existed before. So what we saw under Commander Burbach was just this resistance was growing. It was becoming more difficult to work with Internal Affairs. They were becoming -- they were asking more questions that were leading and suggestive because they knew we couldn't stop them. We could only try and fix it after the fact because we weren't in the room. We were listening. And then at the end of the interview, they would come out and ask if we had additional questions. And so it was just becoming more difficult. And then after Manager Perea left and the DeHerrera case hit, the resistance from Internal Affairs became greater -- became greater and greater until we had the terminations by Manager Garcia where there was no relationship. It was over. The questions
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
always -- when you have an Internal Affairs Bureau conducting investigations, there are always challenges of bias. And those challenges were there with the DPD like they are in almost any other department in the country where, you know, an officer may feel, "There but for the grace of God, go I," or they may be defensive of an officer or not just not want them to get in trouble for any kind of reasons, but there is, obviously, this internal potential potentiality of bias. I've always been a very strong proponent, however, that internal investigations conducted by internal officers or by sergeants within the department can be extraordinarily helpful because it teaches sergeants the importance of accountability, gives them a stake in discipline and in holding their own department accountable, and it gives them the opportunity then when they leave Internal Affairs to let people know that Internal Affairs is not a rat pack out there to get everybody. And it can have a very positive healthy impact having internal -- these people doing these internal investigations with monitoring to ensure that those bits of bias don't fall into place. And sometimes a bias was against officers, and we would

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were biased and leading. The officers, the sergeants were resistant to any recommendations. The investigative summaries were outrageously incompetent, failing to include information that was relevant in any way and would in any way incriminate an officer. The investigations basically became utterly biased and incompetent to the point where I felt that I could no longer work within the system to try and fix it without publicly reporting it. My last hope had been Manager Martinez that when he came in, we would explain to him the problem and he would fix it, he and the new chief. And then when Manager Martinez basically reacted defensively towards Internal Affairs and the department, that's when I realized that the system had broken to the point that I needed to publicly report out that I no longer had confidence in the integrity of the Internal Affairs process. And let me just make a point, I come from an enormous law enforcement background. I was a prosecutor for 15 years working with law enforcement very closely with my own task forces on a regular basis. I have enormous respect for law enforcement. I want them to succeed. I want to give them the tools to succeed.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
39
And over all of the years of my monitoring, there were very few public criticisms I ever made of the departments I worked internally to improve, and it's only when there is no further resort that I would publicly criticize a department, particularly in a systemic manner. Q (BY MR. MOHAMEDBHAI) Based on your observations and experiences as the appointed Independent Monitor for the City and County of Denver, why did the Internal Affairs Bureau begin to resist the impact and influence of the Independent Monitor's office? A It started with, really, one lieutenant, with a commander who was not controlling that lieutenant. And that lieutenant was extremely strong personality-wise and in great respect. The prior lieutenant's Internal Affairs had worked with us, had respected our work, had allowed us to work with the sergeants, but this one lieutenant really negatively impacted any ability to establish relationships lower down. Then over time, when we included the problem with, you know, the DeHerrera case, I had -- one of the lieutenants in Internal Affairs told me after DeHerrera that I had done more damage to the Denver Police
38
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I went to Portland because I saw an opportunity to give law enforcement the opportunity to succeed, to give them the help they needed. I came to Denver because I saw a program which had the opportunity to vastly improve law enforcement, the work they do, and support and defend the work of officers on the street. Although I've been accused, obviously by the union, of being antipolice, it is -- it's almost absurd given the fact that I have been in law enforcement and worked in law enforcement for 25 years. All I care about is investigations of integrity and holding people accountable and exonerating officers when they do nothing wrong. I exonerated -- I supported the exoneration of every officer-involved shooting over a six-and-a-half-year period including in-custody deaths, including the Booker case, which was extremely controversial, where the political whims would have suggested that I criticized the sheriff's department, and I did not. My job, as I saw it, was to help the department succeed. It's only when the department started to ignore your attempts and act in an insular manner and attempt to defend bad conduct that then I would -- I'd come out and publicly criticize.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
40
Department than any person had ever before done in the history of the department. That was the philosophy that was being driven down to the sergeants. And at that point, the sergeants began to look at the Monitor's office as an enemy, you know, as the one who is looking for terminations in departing-from-the-truth cases. I had another case where one of the sergeants said, "Look, yes, I know the officer used excessive force. Yes, I know he lied" -(Reporter requested deponent to slow down.) MR. RICE: Wait, now we're talking about specific cases now, okay. We've gone from observations to specific cases, and I object to that. And I'm asserting privilege to his communications with the Internal Affairs Bureau with regard to specific cases. MR. MOHAMEDBHAI: Well, that's -Q (BY MR. MOHAMEDBHAI) You are permitted to speak about facts that resulted in your opinions. That is allowed, so -MR. RICE: No. No, no, wait a minute. What he was just going into was discussions he had with the Internal Affairs Bureau about specific cases, and I'm asserting privilege to that. You can try and play the fact card, but that's not what he was talking about.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Facts would be whether or not somebody gave a statement or not. That's not -- that's a fact, but consultations and advice, and it includes the discussions going both ways, between the Internal Affairs Bureau and him. So I object and instruct him not to answer with regard to consultations and advice and recommendations regarding specific cases. MR. MOHAMEDBHAI: Well, now it's going to consultations, advice, and recommendations. MR. RICE: It's all the same thing. MR. MOHAMEDBHAI: I understand. Q (BY MR. MOHAMEDBHAI) So you can continue. You are not -A You know, I prefer not to. I think he -- I think Mr. Rice has got a point about, you know, that's dealing with one specific case, and I should probably be talking in more systemic terms. So I'm going to accept the advice, although I have to point out that if somehow that is overturned, I do not want to be dragged back to Denver to answer that specific question. So I do not have an attorney here, obviously, but -Q Sir, I'm trying to avoid that as well. MR. RICE: Well, and I am, too. On the other hand, we've already been to a magistrate's
43
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 allowed to speak as to your observations and -A It wasn't advice or consult that was given to me. It was just the reaction that the investigator had to the advice and consult that we were providing. MR. RICE: But if he was speaking about the case and giving his opinion about the case, that's protected as well. A And what -- all right. MR. RICE: That's what I'm saying. Q (BY MR. MOHAMEDBHAI) All right. So let me ask the question -A Okay. Maybe you can come up with a better way. Q Yeah. A And I was going -Q And you are certainly allowed to speak on specific facts. He is wrong. You are allowed to speak on what you've observed in your experiences. You are allowed to speak on systemic issues, cultural issues of the Denver Police Department. The deliberative process privilege is in no way intended to gag you. MR. RICE: And Mr. Mohamedbhai, you know, I don't want to waste a day here with record, okay, but I have allowed him to answer all those things so far. MR. MOHAMEDBHAI: I understand, except
42
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conference on this, and the magistrate rather robustly stated that there was a deliberative process privilege and that we were free to assert it, and I'm doing that. MR. MOHAMEDBHAI: He is misrepresenting what the judge said. MR. RICE: No, that's not true. MR. MOHAMEDBHAI: So the judge said that you are allowed to speak about facts. You are allowed to speak about specific cases. That is absolutely untrue. MR. RICE: No, anything having to do with the consultative process between this man's office and the IAB, he is not going to speak about. That's part of the privilege. What you are trying to do is misuse the fact exception that was -- that judge carved out that had to do with factual matters in the files, for example, statements which we produced. MR. MOHAMEDBHAI: Okay. THE DEPONENT: Let me ask a question. MR. MOHAMEDBHAI: Let's go off the record -no, let's keep this on the record. Go ahead. A So what I was about to talk about was a reaction that an individual investigator had to an individual case. Q (BY MR. MOHAMEDBHAI) Yes. And you are
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
44
you've interrupted him three times to assert -MR. RICE: The other thing that this has become is become a long narrative answer that ranges into all sorts of things and isn't really in response to inquiries being asked, and so it makes it extraordinarily difficult to interpose objections. When he started to talk about the discussions concerning a specific case, that's when I broke in. MR. MOHAMEDBHAI: He's responding -MR. RICE: Now why don't you ask a question. MR. MOHAMEDBHAI: I am. Why don't you not interrupt his answers with deliberative process? MR. RICE: I will. MR. MOHAMEDBHAI: He is doing a fine job in his questions, and answers are appropriate to the questions. A And let me point out, though, I think Mr. Rice has got a point that I'm going to try to keep the questions -- the answers a little shorter so that they are more specific to the specific question. Q (BY MR. MOHAMEDBHAI) Sure, but the more you give me, the sooner we can get out of here, okay. MR. RICE: That shouldn't be a reason to not adhere to procedure. Go ahead and ask a question. Q (BY MR. MOHAMEDBHAI) Based on your

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 experiences and observations as the Independent Monitor, why did the Internal Affairs Bureau begin to resist the advice and functions of the Independent Monitor's office? A And I've already gone into that quite a bit. I think where I left off was once Ron Perea resigned, the -- there was enormous resistance that Perea was seen as somebody who would be willing to support the police, and I was seen as the person who caused his termination because of my recommendations or my public report I issued relating to a decision that he had made. And so it was clear that at that point, particularly the department and the sergeants were particularly defensive of the issues relating to force and lying to Internal Affairs. And we saw most of the resistance in those types of cases where it just -- we were getting absolutely nowhere. I had to consistently appeal to the chief, to the deputy chief of administration who supervised his Internal Affairs to get any recommendation followed at all. At the point that Manager Garcia then -things kind of calmed down during Manager Malatesta's tenure, because there was really nothing controversial that occurred. Then when Manager Garcia came in and
47
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Department of Justice would be needed to intervene in order to fix the department. Internal Affairs is utterly essential. Competent, unbiased investigations by Internal Affairs is utterly essential to maintaining integrity of policing and to sending a message to officers on the street of what is and what is not tolerated. There is an excellent article by Russell Swope called Integrity and Ethics in Policing, which is actually on our Web site for the Monitor's office under our library, which talks about the culture of a department. Every department will have bad apples. The issue on how well a department is doing is how well do they ferret out those bad apples and take care and hold them accountable. If you are not doing that, if you are not taking care of business in that regard, you have a rotten barrel. And at that point, that is when officers, or sergeants in particular, who are supposed to be the leaders of the organization and pointing the officers in the right direction, holding them accountable to sergeants and lieutenants, when they do not do that, when they start to become defensive of officer conduct, when they do not trust the disciplinary process so that they are defending
46
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 basically terminated a dozen officers, most of them for lying, the resistance became absolutely steadfast, and it was a wall that we could not penetrate. At that point, we were waiting for the new manager to come in. And when the new manager indicated that he was not inclined to push Internal Affairs as -or accept that Internal Affairs was conducting investigations that lacked integrity and needed a full house cleaning, the resistance just continued. So I suppose the short answer is that there was a perception that the Monitor's office was going after officers for force and lying, causing those officers to be terminated, and the sergeants did not like that. They did not want that to be occurring and did not feel that it was appropriate in most of the cases. Q Based on your observations and experiences as an Independent Monitor and your career in law enforcement and public safety, what is the affect of a biased Independent Monitor bureau's department on officer conduct? A It is -- it has the potentiality -- it's a red flag. It's a huge red flag. It is what causes departments to potentially slide into systemic violations of constitutional rights such that the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
48
officers, not reporting officers for misconduct, they are not conducting good evaluations of officers, the investigations do not have integrity. At that point, you have a department that has the potential of systemically violating rights in an attempt to engage in otherwise legitimate policing activities. Q Based on your observations and experiences as the Independent Monitor and your career in public safety and law enforcement, what were your observations as to the ability of the Denver Police Department to effectively discipline and terminate the employment of bad-apple police officers? A I'm going to ask you to say that one more time or read it back, if you will. MR. MOHAMEDBHAI: Can I read it. Q (BY MR. MOHAMEDBHAI) Based on your observations and experiences as the Independent Monitor and your career in public safety as law enforcement, how did the Denver department do in its ability to discipline and terminate the employment of bad-apple police officers? A Well, by "bad apple police officers," I'm assuming you mean officers who have committed violations such that their integrity is no longer -it's not appropriate for them to remain in the position

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of police officer. That's a hard question to answer in the sense that I believe that the creation of the disciplinary matrix provided the department with some excellent tools in holding officers accountable in that regard. While there were a lot of things I didn't necessarily agree with Manager Garcia, I felt that many of the decisions to terminate -- or the decisions made to terminate were good ones. They have not stuck, obviously. They've been overturned by the Civil Service Commission on a regular basis. As such, I do not believe that the department has established an ability to adequately discipline officers based, in part, on everything from the quality of the investigations to the quality of findings made by command staff to rules imposed by the Civil Service Commission on the departments. Before everything went -- before that, before we saw the matrix in place, there were problems in that without the matrix, the prior discipline imposed on departments, on officers was inadequate. It kept being pushed down based upon comparable discipline, and there became a point in time where -cases clearly where officers should have been terminated, they could not be terminated because
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
51
And, again, every department has a different culture. The impact of that has a different impact on each and every department. You know, I've worked with the Los Angeles Police Department, the Los Angeles -(Reporter requested deponent to slow down.) A Los Angeles Sheriff, Los Angeles Police Department, Portland Police Bureau, Denver Police, Denver Sheriff, and I've researched and read every Gold Ribbon, you know -- I'm sorry, Blue Ribbon Report in the country on New York, on New Orleans, on Puerto Rico, on Washington, DC, what have you, and they all act differently. The reality is, though, that without these tools in place to ensure adequate and effective discipline and unbiased investigations, that it has the potential of having a negative impact on office -- on certain officers on the street who will feel as though they can do -- they can give out street justice and not be held accountable, and that their fellow officers will not report them for such bad conduct. And that can have the potentiality of a significant negative affect on the public that they are policing. Q (BY MR. MOHAMEDBHAI) Based on -- strike that. During your time as the Independent Monitor
50
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decisions had been made years before that negatively impacted the ability of the manager of safety to make appropriate decisions. So I would say, actually, in the entire period of my service, in the three months since, that the department has not established itself to be able to adequately discipline or terminate officers who should not be police officers. Q Based on your experience and observations as the Independent Monitor for the City and County of Denver, in your career as law enforcement and public safety, what affect does it have on officers on the street when there are departmental and systemic issues related to discipline and inability to terminate bad apple officers? A The first, it has to be pointed out, there are always officers -- there are always good officers on the street who it doesn't matter. They don't need necessarily the policies or their Internal Affairs or what have you to get them to do their work right. And so there are certainly a significant portion of officers that it will not negatively affect other than the fact that they might allow misconduct to occur in front of them and not report it, but they themselves won't do it.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
52
for the City and County of Denver, did you ever request that the federal Department of Justice conduct an investigation into the Denver Police Department? A Your question is did I ever suggest? Q No, request. Let me ask it again. A Oh, request. Q Let me ask it again. During your time as the Independent Monitor for the City and County of Denver, did you ever request that the Department of Justice conduct an investigation into the Denver Police Department? A Yes. Q Why did you request that the Department of Justice conduct an investigation into the Denver Police Department? A Primarily -- I had a number of primary concerns that I did not feel were being addressed adequately by Manager Martinez or the Hick- -- I'm sorry, the Hancock administration. Specifically, one was that we saw numerous cases where officers were going into people's homes without adequate cause, and the problem wasn't even so much that they did that. It was that when we brought it to the attention of -- or I'm sorry, when the cases made their way through to Internal Affairs, on a regular basis, Internal Affairs

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would recommend declining the cases. We would then have to push an appeal to the chief's office or to the city attorney's office in order to obtain support to convince department commanders, lieutenants, and sergeants that the officers had actually violated individuals' rights when some of these cases were utterly clear that they have done it. So we received enormous resistance from the department to any recommendation, even just -- we didn't want the officers disciplined. We just wanted them trained and counseled on individual instances to help avoid the risk of future instances, and we got enormous resistance to that. And what I saw was a -- I had great concerns because most of these cases were reported by people who had already been told by supervisors the officers had a right to do what they did, and yet they continued to push. And we knew that there would be -- we were concerned it was the tip of the iceberg, that there were all these other cases out there where people were convinced by supervisors that officers had gone in lawfully and they had not, but they never made a complaint. The only way anybody ever found out about this was through a citizen complaint in the vast
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
55
will to fix obvious problems that were of great concern to the community such that the only group that would have the ability to ensure that these pattern and practices of potential abuse did not occur would be the Department of Justice Civil Rights Division. Q Can you give me some examples of specific cases that were red flags to you that supported that there was a pattern and practice of -- by the City and County of Denver for tolerating use of force and dishonest police officers? MR. RICE: And here, I would -- I want to caution that you should not give answer to your consult, advice, and recommendations on those cases. THE DEPONENT: Right. Q (BY MR. MOHAMEDBHAI) Are you able to answer the question without violating the deliberative process privilege invoked by counsel? A Based upon what Mr. Rice said, I think I can. I will say that it's very difficult because, obviously, I do not have, you know, my case monitoring logs in front of me. This is something I have to do off the top of my head relating to six years of instances. Am I permitted to mention the individual names? Because by ordinance, as the Monitor, I do not
54
56
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mention specific names. MR. RICE: Right, that's my point, okay. And that's your -- you haven't given names in your public reports according to the ordinance, nor should you here, but if you want to talk generically about cases and not talk about the advice, recommendations, and consultation you gave, then I don't think that's something I can object to. A All right. That -Q (BY MR. MOHAMEDBHAI) Based upon the deliberative process privilege invoked by counsel for the City and County of Denver, are you able to give me a complete and thorough answer as to the specific cases that support your observations that the City and County of Denver has a pattern and practice of tolerating use of force and dishonest police officers? A Okay. The last part of your -- I'm trying to figure out how to do this. You said the last part was my conclusion that the City of Denver has engaged in a pattern and practice of violating -- what was your term? I'm not sure -Q My question to you -- strike that new question. Based on the deliberative process privilege being invoked by the City and County of Denver, are you
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
majority of the cases. So I was concerned about a pattern and practice of violating people's rights in entries into residences. I was also concerned specifically about the use-of-force cases, the lack of integrity in the investigation of the use-of-force cases, and the refusal from the Internal Affairs Bureau or the department to follow up online during the course of these cases. We call it in the department departing from the truth or commission of a deceptive act. And what I saw, again, was this potential systemic problem where officers were permitted to use inappropriate force on the street, were not held accountable, would lie to Internal Affairs about it and, again, were not held accountable. What I saw was a manager of safety who reacted very negatively to my report, my final report, where I publicly reported that was happening, who seemed to have no interest in fixing the problem. Frankly, had he simply said, "I understand the concerns of the Monitor, I share the concerns, and I'm dedicated to ensuring that the -- that this gets fixed," I would not have called for Department of Justice investigation. What I saw, however, was a lack of political

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I'd rather use the word as to specific cases. You know, again, I'm feeling uncomfortable with you suggesting that I'm concluding there is a pattern and practice. So that's -- I'm having a problem with that part. Q Sure, I didn't mean to. A But on individual cases, I would be unable to give a comprehensive answer without reviewing those monitoring logs. I could identify certain significant cases, but I would not be able to comprehensively answer the question. Q Why is an Independent Monitor's office essential in order to curtail unlawful and dishonest police conduct? A And what I would say is the Independent Monitor's office is essential to ensure the department has the tools to avoid that kind of conduct. The idea behind it is that without an Independent Monitor, without somebody who has access and is looking at it from a different perspective to these files, these investigations, and the ability to help the department avoid common mistakes, that there are many departments in the country, Denver Police Department included, that have extraordinary difficulties in significant cases in doing the work that they need to do.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
able to give a complete, thorough, and accurate response to your observations of the pattern and practice of tolerating use of force by police officers and dishonest police conduct? A See, part of the problem I have with the question is it reaches a conclusion that I'm not sure that I got to, which is, you know, is there a pattern and practice of -- in the City and County of Denver of failing to hold officers accountable. And my concern had been that I am concerned that there may be. I'm concerned that everything out there shows that there could be. Part of the problem is that the only cases I've become aware of are those cases where, you know, they make it to these formal investigations. I'm a little hesitant to say that there is a pattern and practice. I am more told the Department of Justice -- or said that I felt that the Department of Justice needed to investigate whether there was one. So that's sort of a bit of -- it's a bit of a nuance. There were certainly a number of cases which caused me great concern. Whether they make it out to be a pattern and practice is a little more questionable. Q Let me ask a better question then so I'm not
58
putting words in your mouth. Strike that new question. Based upon the deliberative process privilege being invoked by the City and County of Denver, are you able to give a complete, thorough, and accurate answer as to your concerns about the potential pattern and practice of tolerating use of force and dishonest police conduct by the City and County of Denver? A Well, it's not -- I don't think that the objection necessarily is what impacts that. I think the impact may simply be that without, you know, my monitoring logs in front of me and what have you, that I may miss some, that there are certainly some cases that are -- you know, that I can remember specifically and I can talk about, but I will not necessarily give a complete and thorough answer because there are cases that I may not remember off the top of my head. Q You understand that the City and County of Denver has invoked deliberative process privilege on your monitoring logs? A Right, correct. Q And without those monitoring logs that are being withheld by the City and County of Denver, you cannot testify as to the pattern and practice of use of force and dishonest police conduct?
60
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The concept of the Monitor's office is to ensure that Internal Affairs investigators know that someone is watching, so they would be less likely to dissuade complainants, less likely to conduct investigations that will result in not sustained findings when misconduct occurred, less likely to treat officers unfairly if they don't like the officer. It's the idea of maintaining an atmosphere where department investigators are familiar with -- or know that they will be questioned, things will not -if they do something, it's not simply going to be not caught except in unusual circumstances. It's sort of putting a bright light on the entirety of the process so that investigators know and command staff know that people are watching. One of the things I found in policing is there is often, in many departments, insular decision making, where, again, it goes, "There but for the grace of God, go I." "Maybe when I was a rookie, I did something stupid. It wasn't caught on videotape, and now I'm a great officer, I learned from it, I didn't need to be fired. And now here I am and I'm a high-level officer, and I've done much more good than harm." And there is also the issue of just when

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it's one of your people, you know, when your -- this insular decision making occurs in all areas, you know, including all professions, you know, doctors and lawyers and judges. It's just that in policing, it can have this enormous negative affect because the police, obviously, have these enormous powers that no other public official has. So it's all about ensuring that the people involved in the process know someone is watching, know when there are concerns, and have the opportunity to address those concerns so that they feel comfortable that they are doing it right and their supervisors feel comfortable that they are doing it right. One of the problems that's been -- with the issue that's been suggested by Manager Martinez is there is no need for an Independent Monitor's Office. The Monitor's -(Reporter requested deponent to slow down.) A Is that the manager -- the department's successes or the manager's successes, the department's failures or the manager's failures, when you are the boss, you are ultimately responsible for that agency and the people in that agency. And, again, sometimes it becomes difficult to make those decisions without having too much -- considering too much passion in
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
63
that officer should presumptively be terminated. One of the decisions actually creates a role where it says, in essence -- well, you have to determine how significant the lie is, you know. So yes, it might be an intentional and deliberate lie about a material fact, but if the material item is not significant enough, you don't necessarily want to terminate the officer, which, when totally disregarded, a fundamental finding and decision of how we were going to hold officers accountable in the department where officers had a tendency to come in because they did not have trust in the Internal Affairs of the discipline process because, as Manager LaCabe said at one point, the only thing consistent about discipline in the Denver Police Department was its inconsistency. So officers were unwilling to come in and be truthful, and we had to put a stop to it. We had to create a strong line and a strong message, you -- thou shall not lie. And, again, you know, we kept it to what we called the big lie, the commission of a deceptive act, intentional and deliberate deception relating to a material fact of the investigation. The Civil Service Commission has also basically ignored, you know -- ignored the manager -given deference to the manager of safety, instead given
62
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 favor of an employee. And you need that outside influence, that person who doesn't have that interest, to provide you with the advice and counsel to assist you in doing the job better. Manager LaCabe recognized that, and even though we disagreed on certain cases and I was critical of him in certain cases, it did not affect our overall relationship because he knew that there -- there was strong benefit to having someone watching the shop and watching him. Q (BY MR. MOHAMEDBHAI) Based on your observations and experiences as the former Independent Monitor for the City and County of Denver, what affect did the civil service hearing decisions have in overturning terminations of bad apple law enforcement have on the officers on the street? MR. RICE: Object to the form of the question. Go ahead and answer. A It has had a horrible negative impact on the ability of the Denver Police Department or the manager of safety to police the Denver Police Department. They have created a new role above and beyond the reform that we put in place. We recognized that if an officer lies intentionally and deliberately lies about a material fact in an investigation, that
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
64
deference to recommendations made by the police officers, thereby taking away a huge component of civilian oversight of law enforcement in Denver, which is supposed to be through the manager of safety. The decisions that have been made on the cases involving Manager Garcia's disciplinary actions have basically, you know -- I know they are being appealed. I think there is a good chance the City will win on appeal if they put the effort into it, but the reality is it sent this horrendous message to the department and to the officers and the community and has just been horrible negative consequences. Q (BY MR. MOHAMEDBHAI) Based on your observations and experiences as the Independent Monitor for the City and County of Denver, did the mayor's office step in to prevent the Internal Affairs Bureau from rejecting the impact of the Office of the Independent Monitor? A I -- that would have to be speculative on my basis. I'm unaware of that, but -MR. RICE: Object to the form of the question if he is calling for speculation. A I do not know, because he would -- the mayor's office would normally be working through the manager's office, and I would not necessarily be aware

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of that, so I do not know. Q (BY MR. MOHAMEDBHAI) When you were the Independent Monitor for the City and County of Denver, you made public remarks that suggested that the Internal Affairs Bureau had begun to isolate itself from the influences of the Office of the Independent Monitor, correct? A Sure. Q What response, if any, came from the mayor's office or the manager of safety's office when you made public remarks concerning the independent affairs bureau from resisting the influences of the OIM? MR. RICE: Wait, did you say independent affairs bureau? MR. MOHAMEDBHAI: Yeah, I did. Let me strike that -MR. RICE: That's going to be hopelessly confusing. Q (BY MR. MOHAMEDBHAI) What responses, if any, did you observe from the mayor's office and the manager of safety's office when you made remarks concerning the Internal Affairs Bureau's resistance to the OIM? A And that's two questions. So the first one, the mayor's office, the only -- I saw no response at all. I did see, again, in the paper, the mayor
67
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
meetings as a result of prior recommendations? Q All recommendations. MR. RICE: Well, to the extent that this involves consultation, recommendations, and evaluations, you are not to answer that, okay. A Right. And that's my understanding, so I cannot answer the question about any meetings I had with the mayor's office based upon recommendations I made prior to the public report. MR. RICE: Yeah, and let me make something clear. If there was a meeting, you can say there was a meeting. You just can't talk about what was said, all right. It's the advice -THE DEPONENT: Okay. MR. RICE: The fact of a meeting, I think, I would not be well positioned to object to, but if there was a meeting, you can say there was a meeting. It's the content of the discussion that's the issue. A All right. Then I had meetings with the deputy chief of staff, Stephanie O'Malley, on at least two occasions. Those are the only meetings that I can think of. I did not meet with Mayor Hancock after -- I met with him the Friday before he was sworn in, Thursday or Friday, and that was the only meeting I ever had with him.
68
I will admit -- I will state that the mayor's office did not have an opportunity to really meet with me after I issued the report, because I issued a report the day before I left. There was no request for me to meet with the mayor's office after that and, obviously, I've been back to Denver multiple times. But I've had no meetings -- no other meetings with the mayor's office. Then you were asking about meetings with the manager, and I had numerous meetings with the manager, you know, relating to these issues. After my report was issued, I had no meetings with the manager, no requests for meetings. Even while the report was in draft form, I had no requests for meetings. So I always submit a draft to the manager and there was no meetings with the manager between the time that I submitted the draft and I released the final. Q (BY MR. MOHAMEDBHAI) Based on your observations as the Independent Monitor for the City and County of Denver, did the Hancock administration ever implement the recommendations of the Office of the Independent Monitor? A Well, the only -- the problem is that one recommendation I had made in the form of the DUI report, as I refer to it, which found that Denver
66
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 commenting that -- you know, on the disagreement between me and the manager in saying that, you know, intelligent, passionate people will disagree sometimes. That's the only response that I saw or heard from the mayor's office. From the manager's office, Manager Martinez held a press conference where he lambasted the reports, the report, said it was nitpicky, that none of the points that I had made out had any impact on any particular cases. It was extraordinarily defensive of the Internal Affairs Bureau. And it was, you know -and it was an attack on the Monitor's office. Q When the Office of the Independent Monitor essentially made comments stating that the Internal Affairs Bureau was spinning out of control, what meetings were conducted by the mayor's office with the manager of safety and Denver Police and the OIM? A Well, I can't answer with the police or the manager of safety because I wasn't there. I would not necessarily know about those. There were no meetings with the -- well, your question, unfortunately, is a little -- it's not complete -- well, it's difficult to understand. The question, are you asking about any meetings as a result of my public recommendations, or are you asking for any

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 police officers -- that there is good reason to believe that -- Denver police officers not arresting other Denver police officers for driving under the influence incidents in Denver, that was made shortly before the Hancock administration took office. There were recommendations implemented the day before Manager Garcia took office by acting manager Kilroy on that recommendation, so that took about four months, and that was during the Hancock administration. And then, obviously, I was gone after I issued my final report, which contained recommendations. But I have no reason to believe that -- well, no, I take that back. Internal Affairs did change -- there has been changes in staff in Internal Affairs that have at least publicly been stated to be very dramatic, but, again, all I know from that is what I read in the paper. MR. RICE: Let me just clarify something. The recommendation on the DUI, that was a public recommendation, right? THE DEPONENT: Yes. That's all I'm talking is the public. MR. RICE: That's what I thought. Q (BY MR. MOHAMEDBHAI) When did you submit the draft report? And when we speak about the report, you
71
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And by that, I believed reasonable -- I may not agree with it, but I believe reasonable people could differ so I would not publicly criticize it. The DUI report was -- that's right, it was part of a quarterly report. So the only -- the case involved -- you know, in one or two cases I did advances, though, on quarterly reports. Does that make sense? Q Besides for the draft report, did you voice your concerns to the mayor or the safety manager? MR. RICE: This gets into recommendations and consult, and I object to that. A I mean, that's my understanding of the judge's ruling, is I can't answer that. Q (BY MR. MOHAMEDBHAI) Well, I'm not asking for specific statements. MR. RICE: What are you asking for then? THE DEPONENT: That is what I was going to ask. Q (BY MR. MOHAMEDBHAI) Did you ever express oral recommendations to the manager of safety or the mayor? MR. RICE: It doesn't matter if they are oral or written. They are still consult, advice, and recommendations. And to the extent that he gave those,
70
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are talking about the 2011 Independent Monitor report? A Well, let me explain the report. So there is always an annual report, which covers the year -it's released by March 15th, and it covers the prior calendar year. There was four quarterly, obviously, disciplinary reports, which include descriptions of all discipline imposed by the department and if there are any substantial concerns relating to an individual case and the investigations conducted, the sufficiency of the investigations or the quality of the findings or the applicability of the discipline, those reports are issued on a quarterly basis. Occasionally, I'll do an advance on a quarterly report if there is a case of real significance. But I only -- in those reports, I only report on cases where I believe the department has done something wrong, where they've made unreasonable decisions. If I believed reasonable people could differ, I would defer to the department. If I believed it was unreasonable, then I would publicly report; otherwise, all I would do is simply report, you know, Case Number 1, here are the rank of the officers involved, here is a short summary of the incident, here is what the findings were and the discipline imposed.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
72
then I object. A Without going into specificity, let me explain just sort of how -- without saying what recommendations that are made, I would have constant discussions with division chiefs, the chief, the manager, not generally the mayor's office, that was very unusual, but I would have constant discussions with them on cases, on recommendations, on policy initiatives. I mean, it was an ongoing discussion, you know, starting with Internal Affairs, going to the division chiefs, deputy chiefs, chief, and manager. So those would all be instances where I'm making recommendations, I'm making suggestions. In some cases, there will be formal recommendations through e-mails, at certain stated points, either investigations not thorough or investigations being completed, and I think more needs to be done or findings have been made that I think are unreasonable or discipline is being recommended that I think -- I either agree with or disagree with. So there is constant discussions. There is constant meetings on a daily basis. Q (BY MR. MOHAMEDBHAI) Would there have ever been a surprise to the City and County of Denver when you issued your public reports as the Office -- through

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Office of the Independent Monitor? MR. RICE: Object to the form of the question. Calls for speculation. Go ahead and answer. A Yeah, it's -- that's the one thing I always said was they could always see me coming. I would never sandbag anyone in the department. So certainly with a public report, if something were to come out -you know, anything in the draft, they would know I discussed it with them before, but then I would always give them an opportunity to review a draft and then let me know of any concerns or objections they had. And on the whole, I would almost always take recommendations to edit the report into its final form. Certainly by the time it was issued, there would never be a surprise. And I wasn't required by ordinance to do that, to provide these drafts and give them an opportunity to report on it. But under the auditor concept and GAO standards, that is a standard I learned in Portland, Oregon, and I followed with respect to every public report that I issued. Q (BY MR. MOHAMEDBHAI) During your entire tenure as the Office -- strike that. During your entire tenure as the Independent Monitor for the City and County of Denver, did your concerns about systemic problems of excessive force
75
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about what you can comfortably speak about that. A And let me also state, it's certainly possible you could have a department that has Internal Affairs investigations that don't have integrity, and yet you have officers in the field doing a good job. Q Certainly, unlike -A The risk, the risk of officers doing poorly because of that is much higher, obviously. Q During your tenure as the Independent Monitor for the City and County of Denver, did your concerns about the problems of the Internal Affairs Bureau investigations increase or decrease over time? A They -- as I mentioned before, originally, under the command of Commander Lamb, Internal Affairs Commander John Lamb, I had a lot of faith in the integrity of the investigation process in the significant majority of the cases. I still felt monitoring was necessary and appropriate, but I had a lot of faith that the right message was getting out and that the officers were generally doing a good job. The change occurred where, as I said before, there was at one point what I said was on the big cases, they do a very good job, on the little cases, they do a poor job. Over time, that changed, so that on the big cases they did horrible jobs, and on the
74
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 increase or decrease over time? A Give me -- state it again. Q Sure. During your tenure as the Independent Monitor for the City and County of Denver, did your concerns about systemic problems of excessive force by law enforcement officers increase or decrease over time? A Well, and see, here is the problem, this gets back to the other problem I had with the pattern and practice issue. I can't say whether there are systemic issues in use of force by Denver police officers. I'm not out there on a regular basis watching. I get individual cases that come through. My main problem was that the investigations lacked integrity, the findings were often unreasonable, and the discipline was often inappropriate for those cases that I became aware of. But I cannot say for certain, because I wasn't there, to whether or not there was -- there has been systemic use of excessive force -(Reporter requested clarification.) A Force or inappropriate force by Denver police officers. Do you understand? It's a pretty significant nuance. Q (BY MR. MOHAMEDBHAI) Yes. And let's talk
76
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 little cases they did a generally good job. Not necessarily -- that's not necessarily the direction you want it to go in, but it's -- and I think I've answered this already, I talked about the lieutenant, after Commander Lamb left and Commander Burbach took over, the lieutenants started to impact the quality of investigations and submit investigations to me that were ridiculous in their incompetency, and then require me to constantly appeal to Commander Burbach or Chief Lamb then to get what needed to be done done. And then once the -- and I mentioned the name, and it's funny. I've never -- the DeHerrera because it's so public, once that became public and Ron Perea resigned, it became worse. And the investigations of these big cases became less competent. And then by the time of the terminations of officers by Manager Garcia, it just was -- of the significant investigations, it was just -- it was almost a comedy. Q Based on your observations and experiences as the Independent Monitor for the City and County of Denver, when officer discipline is inappropriate, what message is sent to the officers on the street? A I mean, it's obviously a very poor message.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just tell the person, "Knock it off" or just ignore it. But the issue is trying to create a system which pushes down this code of silence to the lowest possible level such that, you know, officers can trust one another, can work with one another, but at the same time, you know, misconduct will not manifest itself in manners that are unacceptable to the community and unacceptable -- in order to ensure constitutional protections. Q Based on your observations and experiences as the Independent Monitor for the City and County of Denver, what steps did you observe the Denver Police Department to take to lower the level of code of silence amongst officers for dishonesty and excessive force? A That's an extremely hard question, because it's painting it too broad of a picture. You know, I certainly saw many commanders, division chiefs, lieutenants who did everything they could to try and ensure effective and constitutional policing. However, in individual cases, I saw lieutenants, commanders, division chiefs, the chief, fail to adequately evaluate cases and impose appropriate discipline. Q In how many cases that you were involved in did discipline occur for officers who were involved in
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
If they know that officers are not going to be held accountable for bad acts, then there is a reduced likelihood that they will report bad conduct by other officers. And then there are those small minority of officers who also would potentially feel as though they are able to get away with bad conduct. Q What is the Blue Shield or the Blue Code of Silence? A The code of silence -- and I've taught a lot on it. The issue, first of all, as I've always said, there is a code of silence in all of society. It's not just involving policing. You have a code of silence in academia, you have a code of silence in kindergarten, you know, when you tell your kid not to tattle on your other kid. You have a code of silence in -- with lawyers, with doctors, everywhere. It's just -- it's a matter of how we, as a society, are able to operate. Every department in the country has a different level at which the code of silence manifests itself. In cities such as New York, New Orleans, Miami, you know, officers can actually watch corruption, corrupt activities, potentially be aware of homicidal activities, drug dealing, and they will not report it. In New York, they refer to as the meat eaters and the grass eaters, the meat eaters doing the
78
80
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the process that failed to report uses of force or dishonest conduct? A All right. One more time. Q Sure. Where -- I'm asking about this, is excessive force case comes in and there is an investigation, but then there is other officers involved in the peripheral as witnesses and whatnot, so -- strike that. My question is, based on your observations and experiences as the Independent Monitor for the City and County of Denver, did Denver discipline witness officers for their failures to report excessive force or other officers' dishonest police conduct? A The -- yes. This is a very difficult area, however, because you want to avoid discipline in the whistleblower. The point is that oftentimes in other cities what I have seen was an officer would report misconduct, but they take too long, so now the other officer would deny it. That officer would be not sustained, but the officer who reported the conduct would be sustained for failing to report. So the only one disciplined was the whistleblower. And so there has to be a recognition in the department that there has to be a balance.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
corruption, the grass eaters watching, but not reporting. In other cities such as Los Angeles, they would not tolerate corrupt activities. They would tolerate inappropriate force. So each city has a different level in the code of silence. One of the things I saw in Denver was that there seemed to be a tolerance of discourtesy in that of all the cases of discourtesy we saw and was the most common complaint, which is typical nationwide, we only had one time where a witness officer came forward and witnessed discourtesy. And on that occasion, as the case was going through command review, the officer recanted. So we've never had a Denver police officer report another Denver police officer for discourtesy in a formal Internal Affairs case. So the code of silence appears to certainly go in that direction. We watched in the civil service hearing officers testify in a civil service hearing involving force and where an officer was actually criminally charged with assault, them say they didn't feel that they could come forward and report that initially. So you are going to have a certain level of code of silence no matter what, including if one officer sees another officer take a free cup of coffee from 7-Eleven, they might not report it. They might

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE DEPONENT: And am I allowed to talk about individual cases? MR. RICE: No. THE DEPONENT: All right. MR. RICE: Not with respect to your recommendations, the consult that occurred, or any advice that you gave, and you also shouldn't identify cases by name. A Right, and I've got that. But this one is not a recommendation I made. It's an example of when the department mitigated -- okay. So as an example, where we had an officer report another officer for excessive force, although the violation would have been by the officer failing to report, he failed to report it in a timely fashion, would have been a Category D or Category E under the matrix, which would presumptively require a 30-day or a 10-day suspension, if it was an E, it's 30, if it's a D, it's 10. There would be extraordinary mitigation found such that the officer would get a written reprimand. And the idea behind it is it was so important that officer report the misconduct and that the subject officer be terminated that you didn't want to send a wrong message by overdisciplining the person
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
83
communities and the quality of their leadership and the history of the organization, who can function adequately without civilian oversight, although first, every agency has civilian oversight, in a sense. Chiefs are appointed by mayors, city council, city managers. You know, there is oversight in the form of the courts, plaintiff attorneys, prosecutors, I mean -so every police agency in the United States has a certain form or level of police oversight. When you talk about the traditional concept of civilian oversight of law enforcement, you, again, have an enormous variety of types, everything from, you know, police commissions or police commissioners or managers of safety to committees that evaluate to appeals of Internal Affairs complaints like the public safety review commission did before I got there, to include -- up to and include independent investigative agencies like they have in New York and Washington, DC, and Chicago, San Francisco, and then a monitor/an auditor concept of oversight. And what I found is that the monitor/auditor form of oversight tends to be very effective where you have departments where -- in necessary, where you have departments where there are communities that have real concerns about the department, where you have a history
82
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 who failed to report it immediately like they should have. And so there is always this -- the concern about the message you're sending when you're disciplining the whistleblower, and it's a legitimate concern. MR. RICE: We've been going just short of two hours. Do you want to take a break for a few minutes? THE DEPONENT: As I said, my big thing is I've got to get out of here and to a plane on time, so I don't need breaks, but if you guys need them -MR. RICE: The court reporter might enjoy it. THE VIDEOGRAPHER: We're off the record at 9:56. (Recess taken from 9:56 a.m. to 10:07 a.m.) THE VIDEOGRAPHER: We're back on the record at 10:07. Q (BY MR. MOHAMEDBHAI) Why is robust citizen oversight of a police department important? A It's extremely important, particularly -and, again, it depends on the agency. Every agency is its own culture. There are agencies that could potentially, due to just the expectations of the
84
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
of uses of force, cases involving deadly force in particular, uses of force, that have caused consternation in the community such that it has a negative impact on their satisfaction and their willingness to cooperate with law enforcement. But what -- this is sort of -- this program and the importance of it really is for mid-level agencies, those agencies which are able to investigate themselves, because it is better if a police agency does their own investigations, but needs assistance in order to ensure that the community and the city leaders have confidence that they are doing it adequately. Traditionally, these types of programs are put into place when there are instances where it hasn't happened, where the department has not adequately policed itself, or where there have been instances where there has been use of force and the community is not convinced that the officers have either handled themselves appropriately or that the exonerations of those officers have integrity. So a monitor office can be used by a city appropriately to give the right message out to the community that there is someone watching, that their -provide transparency in the process such that they know that if, in fact, the department is not doing its job,

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they will become aware of it. It's important to the mayor and the city council members, the people who are giving the department money, who are paying out on lawsuits to know that there is an organization of integrity and independence that will let me know if there are problems because the police might not do so. It's important to department command staff so that they learn about problems earlier on and are able to fix them as opposed to only finding out at the very end when there is nothing else that it can do. It's important to the community to, one, be able to have faith in the integrity of the process and, again, to know and be able to get enough information that they can judge for themselves how well the department is doing in that regard. It's just utterly essential in order to maintain any level of confidence in policing. The problem, of course, is that what it requires is the department actually cooperate and work towards the same goals that the Monitor's office would have. Q Based on your observations and experiences as the former Independent Monitor for the City and County of Denver, did the Denver Police Department need robust civilian oversight?
87
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 findings were reasonable, that they were. And, in fact, that's what happened for the six and a half years with respect to all the uses of deadly force. The lieutenant in charge of the homicide bureau at the time, Lieutenant John Priest, did a fantastic job of really bringing the department to the forefront on the investigations of the deadly force incidents and working with my office in ensuring that we could, you know, let the public know that there was integrity in those -- in that investigation and interview process. So it was very important in that sense. It was also extremely important in Internal Affairs just to try and ensure the integrity of the Internal Affairs process because, again, we -- there was a problem in that regard, and then there was also a problem with respect to just the lack of consistent and effective discipline, again, largely to include -- I mean, will include all violations, but also force and commission of deceptive acts. Q (BY MR. MOHAMEDBHAI) Based on your observations and experiences as the former Independent Monitor for the City and County of Denver, does the City and County of Denver and the Denver Police Department require a robust Independent Monitor?
86
88
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Absolutely. Q Why? A As we saw with Manager Martinez and his reaction to -- actually, well, Manager Garcia and his reaction to the DUI report, his private reaction, and Manager Martinez and his reaction to the ultimate report and, frankly, Manager Perea in his decisions with respect to the one case that -- two cases that I had to be critical of is even though you have civilian oversight in the form of manager safety, which is excellent, that the ultimate decision maker is the civilian. The person who is in that position is the employer. The position -- the person who is in that position is subject to a lot of pressure and coming up through the chain of command, not to constantly -- not to be constantly changing or disagreeing with or criticizing what their people are doing. You know, people need support from their higher-ups. People need support from the manager of safety, the police need it, the officers on the street, everyone needs to be confident the manager of safety is looking out for their best interests, you know, as well as the community, but there is this balance that -where the manager can get pulled in the wrong direction by this enormous pressure.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A Yes. Q Why? A There was a tendency, and I discussed this before, but there was a tendency on the part of Internal Affairs to be too willing to accept any statement from an officer and not willing to follow up to try to ensure whether it was truthful or not and the willingness to accept and simply do the minimum possible work to make cases go away. And they were particularly weak on force cases and on cases involving, you know, entry into residences and cases involving deception. The -- I'm trying to think. So the question was -- repeat the question again. MR. RICE: He said, did the Denver Police Department need robust civilian oversight? A Right. So there were also significant concerns -- thank you -- with respect to, you know, uses of deadly force that could have caused, frankly, civil unrest at a later time had they not been dealt with, and that was one of the big reasons we came in and we rolled out to officer-involved shootings and we monitored the investigations. And I was in the position to be able to say, when the investigations were thorough and complete and appropriate and the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Monitor helps provide that counter to that -- the counterbalance so that the manager now is in a position where they are hearing, you know, all sides. And this, again, there are some times when I would go to the manager and say, "Don't sustain this. The chief wants to, you know, sustain and give this discipline. Don't do it. It's not there." And then there are other times when I go in another direction. It all depended on the facts. But the significance in -- particularly in Denver of the need for independent oversight is just -to me, the proof is kind of in the pudding. Now, the problem also is you need, because of the nature of the beast and the strong mayor system and the manager being a member of cabinet and what have you, is you have to have a good working relationship between the manager and the Monitor, and a manager is going to respect and understand that the Monitor will sometimes have to be critical of the manager's decision and will react in a professional and appropriate manner as opposed to either, one, taking it personally; or two, deciding to use it as an opportunity to gain favor with the union or the rank and file or using it as an opportunity to defend and justify conduct regardless of the affect it's having, because it happens under his watch and it
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
91
from, frankly, being willing to serve in a poisonous environment where your credibility is -- and ethics are constantly called into account and where vicious personal attacks are made on a regular basis. Q What affect did the Police Protective Association have on the Office of the Independent Monitor while you were the Independent Monitor to deleteriously -- that's a bad question. Let me -A I should have used that word. Q What were the negative effects of the Police Protective Association on the abilities of the Independent Monitor to function per its manual? A Prior to Ron Perea taking office, it was minimal. You know, there were times when we would have to go to decision makers and explain why the ordinance should not be amended or changed and why there was no need -- and how you are not operating outside our mandate, because the reality was whatever sniping, whatever criticism was going on, simply was not being -- they were being listened to, but there was an understanding by the mayor's office and the manager's office and city council that their concerns were not, on the whole, significant or legitimate. Once -- well, I can't speculate of what, obviously, they said to Manager Perea, but I did know
90
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 can effectively affect his reputation. Q During your tenure as the Independent Monitor for the City and County of Denver, what affect did the police unions have on your ability to monitor police use of force and police dishonesty? A Well, with the right leadership in place, they had virtually no negative impact. And, in fact, sometimes they had a positive impact, sometimes they would bring up issues where we would say, "You know what, you're right, this one wasn't handled right correctly, it should have been handled in another way." When you have the leadership that's weak, it's -- can have enormous dilatory affect on the ability of, you know, the Monitor's office to function. When you have the police union doing everything from, you know, filing an ethics complaint against the Monitor to soliciting, you know, an audit from the Monitor's office and trying to get the auditor's office to make certain findings to calling for a changes in the ordinance to reduce the powers and effectiveness of the Monitor's office to lobbying city council members, mayoral candidates to fire the Monitor and reduce the positive impact the Monitor's office can have, it was -- it distracts the Monitor's office from being able to do its work. And it distracts the Monitor
92
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that with Manager Perea, suddenly there was no willingness to talk about cases such as there was under Manager LaCabe where we would sit down. If there were any significant disagreement, we would sit down and really discuss the issues until we were able to resolve it one way or the other. With Manager Perea, that did not occur. After -- when I released the report on the DeHerrera incident, I was called by the union president who said, "Don't release this report. It will have -you realize if you release this report, we will have to come after you." And I had to respond, "So you're telling me don't do my job because of political influence, because then you are going to come after me?" "No, no, I'm just telling you it will not end well." And that was one of the last conversations I had with anyone on the union. And after that, they began their constant attack on the Monitor's office and me professionally. It was a -- extraordinarily distracting. It made us less effective, and eventually, it helped me make the decision to take another job. Obviously, as I said, that other job was -- I may have taken it regardless, it was such a wonderful opportunity. But at the same time, you know, there were reasons to stay

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in Denver. Things had -- we hadn't fixed everything. There was still a lot to do. There was still a lot of changes ahead. And frankly, most of those challenges were as the result of the union E board and the union president just, you know, destroying officer -- or the Monitor's credibility with officers in rank and file. Q What steps did the City and County of Denver take to protect you from these attacks by the police unions? A I'm not sure that there was anything they could do, you know, other than potentially offer support. But I'm not aware -- I'm not aware of any action that was taken. I'm not aware really -- I'm not sure I know what action they could have taken other than to be supportive of the office and not necessarily create a committee which seems to be biased against the monitor concept. Q Well, when the Office of the Independent Monitor was being criticized by the police unions, did the City and County of Denver voice its support or offer any support to the Office of the Independent Monitor? A Well, you know what, actually, as I think about it, you know, certainly -- let me -- I'm thinking about it. And actually, the answer is yes, in that,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
95
MR. RICE: Okay. If you know, fine, but don't guess. A I'm not positive, but I think it was July 1st of 2010. Q (BY MR. MOHAMEDBHAI) What was it about the DeHerrera report that the Office of the Independent Monitor produced that was objected to by the police unions? A Well, they -- it wasn't even so much the report. It was the fact that Perea then suffered withering criticism. They did criticize specifically and often. They claimed that I appeared -- made an appearance on Good Morning America when the reality was it was the -- they brought a camera out to me and I made a statement to them, just like I did with any other media on a report. So the way it would work is I would issue a report and then I would make myself available to the media to comment on the report. I was stuck within the four corners of the report. So that was then run on Good Morning America, and the victim and his family ended up going out to New York and then they ran a clip of me. So I was definitely criticized for -- you know, for appearing on national TV, even though I previously
94
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you know, under Mayor Hickenlooper's administration, the chief of staff was very supportive, and this went through, you know, Perea resigned and Hickenlooper kept going on, great support under the Vidal administration, both, you know, moral support and just, you know, respecting and working with my office. So I have to -- that prior answer is not actually correct, because I was thinking only after the Vidal administration. So certainly during the Hickenlooper administration and the Vidal administration, there was significant support for the Monitor's office and for my position. Q But what about the Hancock administration? A I didn't feel -- I'd give information and I'd get nothing back, so I did not feel a level of support for the Monitor's office. I did not hear anything negative. You know, it just seemed to be very neutral. Q When did Ron Perea become the safety manager? A I think he started -- was it July 1st of -I'm now guessing, 2010. I'm looking to you guys. Obviously, the years start to compress on one another. MR. RICE: Do you know? THE DEPONENT: Yeah, I'm pretty sure.
96
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appeared on local television, you know, on many, many, many other cases and all kinds of circumstances. But it was -- it appeared to be, it was the -- well, actually, since he called me originally when it came out, obviously, they were not unhappy and concerned that something would happen that it would blow. In fact, now I'm remembering, he actually said, "This is just going to blow up," and that was the concern, the negative publicity it would have on the department. And then eventually Perea resigned and it was clear that that was a big basis for it. And at that point, you know, I -- in essence, the perception was that I had gotten rid of the manager who was supportive of the police and therefore I had to go. Q Why is it important for the Independent Monitor's office to be able to speak with the media? A It's one of those things where it's the transparency portion of the process. You need -- you know, the first part of the program is working within the department to ensure the integrity of the investigations and the decision making and the discipline. The next part is that if, in fact, decisions are made, final decisions are made that are not

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mainly -- it didn't make any sense what the criticisms were or it was based upon inaccurate information. But the union would, you know, say, "Oh, he's -- he has no right to monitor any case he wants, you know, it's limited under the ordinance." No one else agreed with him, including, you know, the mayor, the manager, the city attorney, I mean, nobody was -- it was always them kind of chipping, suggesting that we were overstepping -- overdoing our mandate, but none of it really ever made any sense. Because the key point was this: That I had -- you know, my powers in a lot of ways were utterly limited by what the chief was willing to do. So for example, in the ordinance, I only could make recommendations to the chief. Well, the chief then had the ability to say, "Okay. Well, I want you to make recommendations to my deputy chiefs or my division chiefs. I want you to talk about them or not." If the chief said, "No, I don't want you talking to my division chiefs or deputy chiefs about recommendations, just to me," then the answer would have been "okay." You know, the ordinance doesn't give me the power to talk to your division chief or your deputy chiefs without your assent, in essence, because it just is the chief.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
reasonable, it's the ability to publicly report out on those to let people know, you know, somebody is watching the shop and that decisions are made that are reasonable and investigations are made that are appropriate, that the Monitor be able to, again, publicize that information through the reporting process. I keep switching between process and process, sorry, but it's through this that, you know, the public and the leaders of the government understand that they are going to be given the true story. You know, it's not going to be that we only report publicly on the good, and the bad, we cover up and do quietly behind closed doors. It's that they can know that this information will come out, good, bad, or indifferent, and that they can rely on that information in making decisions about the police. The media, you know, very few people read these reports. The media read the reports and then a couple -- I can't tell you how many times I had to say to officers or union officials or, you know, members of the public who would be critical of a report, I said, "Did you read it?" "No." "Read it, then call me back, and then we can talk about it." And they never called me back, because what our reports were intended to be, they were intended to be stand-alone reports that, you
98
100
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
know, upon -- that somebody reading would understand where we're coming from. They may not agree with it; at least they'll understand the basis for it. So talking to the media is essential to getting that report and that message out, because that's how most people get their information, either be it by television or by newspaper. And so what's important is that you're careful about what you say. You know, you don't overstate your case or the position. You, you know -- if the department is willing to listen and correct something, will acknowledge that. But most importantly is that you talk within the four corners of the report. And the report is what you're willing to say publicly, and then the television -- they need somebody to say something. If you just give them the report, it hurts them in the way they send the message to the community. So it's just essential to ensuring a process with integrity that the Monitor, one, issues public reports; and two, is able to comment on those public reports publicly. Q During your time as the Independent Monitor for the City and County of Denver, were you ever criticized for overstepping your mandate? A Only by the union, that I was aware of, and
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Over time, the chief recognized that it was much better to resolve these things at a lower level, and he would say talk to my deputy chiefs -(Reporter requested deponent to slow down.) A Talk to my deputy chiefs, talk to the division chiefs, you know, see if you can work that out. If you can't, you know, they are big boys and girls and they can stand up and say, "No, we disagree with the Monitor" and go to deputy chief. The mediation program, nothing in the ordinance gave me the power to create and manage a mediation program, but it was for the best interests of everyone, rank and file, the chiefs, you know, the department, the community. And so everyone agreed I could and everyone agreed that it was better if I did it than if they did it. I had no power to require the department to give every disposition letter to my office for us to send it out with the cover letter, but we did it because it worked out better. It gave the department cover. Somebody gets a letter that says, "Hey, the department exonerated" -- you know, they wrote a letter saying, "We've exonerated the officers in your case," and the Monitor's office puts a cover letter saying, "We believe the decision was reasonable," it inures to

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the benefit of the department. So there was a lot of stuff that we did that operated outside the ordinance, but it was at the specific either request or with the consent of the department because they recognized it was for the best interest of the department. Q (BY MR. MOHAMEDBHAI) During your time as the Independent Monitor for the City and County of Denver, did you have concerns about the Internal Affairs Bureau outright rejecting cases for investigation? A That was difficult because one of the problems was how do you find out. We did have concerns -- there were times when intake officers, intake sergeants would say inappropriate things to complainants. I remember I walked by one time and one sergeant was yelling at somebody, "Why should I believe you over the officer." We listen to intakes and where they would make comments that were inappropriate, where they were prejudging, complainants' complaints, there were some times when people would go to the department, be turned away, and they would come to us. We never had one of those, though, that was a really significant case. They were all legitimately subject to a decline. We just felt that we should get a case number and be documented and then declined
103
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 declined by the Internal Affairs Bureau for investigation, correct? A Correct. Q And this declination by the Internal Affairs Bureau was supported by the Office of the Independent Monitor? MR. RICE: Now you are asking him for his advice and recommendation, and that's protected by the privilege, so I'm invoking privilege on that. A Yeah, I agree with him. I would like to answer it, but I don't think I can. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor support the decision of the Internal Affairs Bureau to decline the Alexander Landau matter? MR. RICE: That's the same question in a different clothing. You're asking for support, sounds like a recommendation or a request for advice. A Well, except that there was an initial declination letter that went out and an initial letter from my office that went out. MR. RICE: Okay. Well, you can talk about what went out publicly. A Yeah. So initially, the declination letter was sent out by Internal Affairs, and my office did put
102
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rather than simply ignored -- or not ignored, but that the person would be turned away with an explanation. And that was the policy that we wrote at the beginning anyway. If somebody wanted to pursue a complaint, you take it regardless. You don't just explain to them that there is no misconduct and let it go. But we did have -- definitely have concerns about the quality of the intake and concerns that there were people that may have been turned away that we did not become aware of. Q The Alexander Landau case was initially declined by the Internal Affairs Bureau of the City and County of Denver, correct? MR. RICE: Now, wait. Now, you're getting to a specific case here, okay. And you are -- next question is going to be what was his discussion and recommendation and where -MR. MOHAMEDBHAI: You don't know what my next question is, so -MR. RICE: All right. Well, in the event it is, then we're not going there. Go ahead and ask the question. A Yes, it was -Q (BY MR. MOHAMEDBHAI) Let me ask the question again. The Alexander Landau case was initially
104
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a cover letter on it. I believe it was signed by my deputy monitor stating that -- I believe the letter would have said that the decision was reasonable initially. Q (BY MR. MOHAMEDBHAI) Why did the Office of the Independent Monitor initially find that the declination of the Landau matter was appropriate? MR. RICE: Now you are getting into the advice and consultation. THE DEPONENT: I mean, I would like to answer very briefly. MR. RICE: Well, I just don't want you to get into the substance of any communications where you provided your advice and recommendation as an office. I understand you may not have done it yourself, but the privilege goes to the office, not just you. THE DEPONENT: Right. Let me think about this for a second, because -- so this was not a recommendation made. I'm not talking about any recommendations -MR. RICE: But what I -- recommendation, I'm using it broadly -THE DEPONENT: The decision. MR. RICE: Decision, consultation, any type of consult that occurred between your office and the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IAB, that's the thing that's protected on specific cases. A All right. That's making sense to me. So I'm thinking -- I'm thinking I'm not allowed to go into the reasoning. Q (BY MR. MOHAMEDBHAI) It appears so. A Yeah. Q What were the recommendations of the Office of the Independent Monitor concerning the Internal Affairs Bureau's initial recommendations in the Denver Diner case? MR. RICE: Same objection. MR. MOHAMEDBHAI: You are invoking the privilege? MR. RICE: I am. A And the question was what, their initial recommendations? I mean, that would seem to fit. Q (BY MR. MOHAMEDBHAI) I believe earlier you testified, sir, that you saw problems and you had concerns with command-level review failing to reach conclusions that were appropriate given the facts? A Correct. Q Did you have concerns about the command-level recommendations made by Lieutenant Ciempa, Commander Dilley, and then Chief Klee in the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
107
nature of the investigation and the quality thereof, so I object. Q (BY MR. MOHAMEDBHAI) Was there a failure to adequately investigate the Denver Diner case by the Internal Affairs Bureau of the Denver Police Department initially? MR. RICE: Same objection. THE DEPONENT: You know, it might be helpful also just to explain the process. MR. RICE: Well, just answer questions, okay. The trouble with that is it gets into just -THE DEPONENT: Well, it also explains -MR. RICE: If he wants to ask you, that's fine. THE DEPONENT: Sure. Q (BY MR. MOHAMEDBHAI) Through your experiences with the Independent Monitor's office, you're aware that Chief Klee found nothing wrong with the conduct of Officers Nixon and Devine concerning the Denver Diner incident? A And that -- I mean, as far as I know, that's deliberative process as well. MR. RICE: Well, he is just asking the fact of whether or not you are aware that she found that, okay. And that's already been disclosed, because
106
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Denver Diner cases? MR. RICE: Same objection. This gets into the deliberative process. You're asking for his consultation, recommendations, and advice. Q (BY MR. MOHAMEDBHAI) What were the facts of the Denver Diner case that you relied upon when you recommended a course of conduct to the Denver Police Department concerning the Denver Diner cases? MR. RICE: Just facts, not analysis. A Right. Well, I had the entirety of the Internal Affairs file, which included video, reports, interviews conducted with officers, radio transmissions, eventually, findings and recommendations made by command staff. The entirety of the Internal Affairs file was at my disposal for making recommendations. Q (BY MR. MOHAMEDBHAI) What was the Office of the Independent Monitor's conclusions regarding the integrity of the investigation initially performed by Internal Affairs concerning the Denver Diner incident? MR. RICE: That goes directly to his recommendations, advice, and consultation. THE DEPONENT: Yeah. MR. RICE: That's exactly what you are asking him, to tell what his thoughts were about the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
108
that's -- we don't assert deliberative process in the decision in the chain of command, okay. A Oh, sure, then absolutely. I was aware of that. Q (BY MR. MOHAMEDBHAI) And now, Chief Klee is the person in charge of the Internal Affairs Bureau of the Denver Police Department, correct? A That's my understanding. Q Is the person in charge of the Internal Affairs Bureau for the Denver Police Department an important position? A Yes. Q Why? A They create the culture of the department. When we saw that Chief -- when Chief Lamb was in charge of Internal Affairs, things went relatively smoothly. He set a tone, tone and balance, and created a culture within Internal Affairs that was supportive of civilian oversight. When Commander Burbach took over, it became -- and it's not completely his fault, but it became more difficult and he lost control and the culture changed and he was unable to make it work the way it had before. And, in fact, it came to the point where it became so difficult that I had to publicly

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 report on it. So whoever is the commander can have a huge impact on the quality of the investigations, the expectations that are -- what's expected of the investigators and the culture of the bureau. Q Based on your experiences as the Independent Monitor for the City and County of Denver for nearly six and a half years, what message was sent to the officers when Commander Klee, who found nothing wrong concerning the Denver Diner incident, was appointed to the head of IAB? A I can't answer that. I think that's totally speculative, what message was sent, what did they receive, what was intended. I mean, what I can say is although I did not agree with some decisions made by Commander -- or by Division Chief Klee, that I did find her, in general, to be a very dedicated, you know, chief and -- who made some difficult decisions which went against officers, as well as others that went in favor of officers. And while -- that over time, certainly in the last two years, I gained a fair amount of respect for Chief Klee. So the mere fact that I might have disagreed even strongly with the decision made by her, you know, I felt that she was one of the top performers
111
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documents in this case, okay. And so I don't even think you know what are in all those documents. I'm doing my best here. You asked him about a specific case, and I'm asking you if there is a public statement that you're referring to, I won't object. If you are asking him just about what his office recommended on that specific case, then I am. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor publicly issue statements that they supported the termination of Officers Nixon and Devine? A Inferentially, we did. So as I mentioned before, in the -- if we -- I used a standard where if reasonable people could differ, I would defer. And I would only publicly criticize if I believed the decision was unreasonable, which, by the way, I was not required to do under ordinance. So I guess I acted outside the scope in that respect, too. I made a decision on how we should do the reporting and looking at what the intent of the ordinance was. That case would have been reported in our quarterly reports, and I did not criticize the decision of the manager in terminating the officers and, therefore, I would have publicly stated that I felt that a reasonable person could have terminated the officers.
110
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the command staff at the time I was leaving. I'm not going to give an opinion on whether she should have been put into Internal Affairs or not. That happened after I left, and I don't think that's my role, but I think she -- I mean, I think she has integrity, but she has weaknesses as well. MR. RICE: That sounds like all of us. THE DEPONENT: Yeah, absolutely. Q (BY MR. MOHAMEDBHAI) The Office of the Independent Monitor supported the termination made by Manager Garcia of Officers Nixon and Devine, correct? MR. RICE: Wait a second. So you're asking in the context of the review of the case? Because that gets to deliberative process of what they recommended. MR. MOHAMEDBHAI: It's been disclosed. MR. RICE: Okay. So where? Show me where. If you want to reference a public statement, I don't have any problem with it. MR. MOHAMEDBHAI: You just seem to be invoking deliberative process every which way -MR. RICE: No -MR. MOHAMEDBHAI: -- without knowing about what's disclosed. MR. RICE: Actually, I think I do know, but as you well know, we've disclosed over 100,000
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
112
It should be clear I am not disclosing at this time what my recommendations were, what my personal feelings or professional feelings were on that. MR. RICE: You are commenting on public statement? THE DEPONENT: Exactly. MR. RICE: All right. Q (BY MR. MOHAMEDBHAI) Based on your observations and experiences as the Independent Monitor for the City and County of Denver and your career in law enforcement and public safety, why is it important to have a timely disciplinary process? A An untimely disciplinary processes negatively impact officers who are sitting there not knowing what's going to occur with respect to a prior incident. If an officer is going to be sustained in discipline, it negatively impacts the -- there is an officer who is out there for a significant period of time continuing to do their work without knowing that what they've done previously has been adjudicated or determined to be wrong and that they are subject to discipline. It's unfair to community members who don't know what is going on and have to wait for significant periods of time to see the department police itself.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 able to make it so that every case was resolved within -- by the DA within weeks, and all but two cases were resolved administratively within six months. One was because discipline was imposed and the officer was terminated, so it took slightly longer than six months. And another one took, like, six months and two days. So we were able to significantly improve the timeliness of officer-involved shooting and in-custody death investigations, but we were never able to adequately address the problems of timeliness in Internal Affairs investigations. Q Based on your observations and experiences as the former Independent Monitor for the City and County of Denver, why did Denver have a problem with untimeliness of its Internal Affairs investigations and its command staff review? A And that's two separate questions. With respect to the investigations, it was -- it was a number of things. The ones that tended to be -- take the longest also tended to be the ones where Internal Affairs would argue with us and would not accept our recommendations and I would have to appeal. So in some parts, significant investigations, a lot -- some of the timeliness is a direct impact of monitoring and our inability to get
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
It's unfair to the department culture in that it seems that there is a lack of accountability. It's unfair to everyone and everything in the process to have cases drag on for too long. At the same time, I point out that there are certain benefits to having a robust review process and that what people sometimes lose track of is that there needs to be a balance between timeliness and ensuring that an -- you know, the findings are right and the discipline is correct and ensuring that there has been -- that the department in the long-term will have a stake in the discipline that's imposed. So if you take too many people out of the process and you just put in one person, then what you end up having is just the person up in the, you know, ivory tower making decisions affecting everyone else, and it doesn't help the culture in any way. The culture becomes more defensive. At the same time, if you have too many people involved or it takes too long or you don't impose appropriate timelines, then you get these things dragging out and having a negative impact in that regard. Q Is it fair to say that during your entire tenure as the Independent Monitor for the City and
114
116
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cooperation from Internal Affairs, and it would take time to appeal it up the chain of command until we could get something done. In other cases, frankly, the work ethic of the Internal Affairs investigators did not appear to me to be extraordinary, and I would see them chatting away, talking to one another on a regular basis when, frankly, they should have been working. There was not -- we would try to provide -we did provide Internal Affairs with timeliness reports on a regular basis. I did not -- they were used well sometimes and not so well other times, so I just -- I didn't see the huge -- I didn't see Internal Affairs command staff necessarily pushing as hard as they could have in particular. If an officer went on vacation, if an investigator went on vacation, those vacations were routinely respected, and nobody would be brought in unless it was a really extraordinary circumstance. So an -- and officers tend to take four- to six-week vacations. So if a witness officer, subject officer or investigator had a vacation coming up, it would put off the investigation by four to six weeks and then another four to six weeks or what have you. So that was a continuing problem with timeliness of investigations.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
County of Denver, you were critical of the length of time it took from complaint to final disposition of discipline for officers? A Yes. Q You're aware, as a former prosecutor, that murder investigations by police officers take approximately six months? A I'm not sure I -- what do you mean, "murder investigations by police officers"? You mean homicide investigations conducted by a homicide bureau -Q Sure. A -- not related to police -Q Just generally. A -- shootings? You know what, actually, I've got to tell you, their -- it depends. I do not know, and I've never really paid close attention to the average number -- the average amount of time it takes to conduct a homicide investigation. I do know that some take -- can be done extremely quickly and others can take a long time. I can say that for officer-involved shooting investigations, when I got here, they were taking at least one to two years to resolve administratively. And that by working closely with the district attorney's office and homicide bureau, we're

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 untimely because he couldn't get them done in 15 days. Now, that was an interesting point, though, that his decisions were ultimately usually good. So on the back end, I was willing to wait to get that decision from Manager LaCabe because he would make, ultimately, excellent decisions. Later on, Manager Perea made very quick decisions, which turned out not to be so good and disastrous. So that goes to where there is a balance that has to be made towards timeliness and good decision making. Q Based on your observations and experiences as the Independent Monitor for the City and County of Denver and your career in public safety and law enforcement, what affect is made on the officers on the street when there is a languishing disciplinary process? A It has -MR. REYNOLDS: Object to form. Go ahead. A Okay. It has a negative affect on morale, the officers who are, you know, involved. It has a negative affect on integrity from the officers' perspective who are watching other officers who, you know, have been involved in an incident and nothing has been happening. It has -- and the question was what
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
I'm trying to think if there was anything else on the timeliness of investigations. I think that's pretty much it. In command review, this was extraordinarily frustrating all the way through. The chief would -- as much as we push for timely chief's hearings, it wouldn't happen. I always asked -- I basically said that it was only the very unusual case where a chief's hearing should be conducted in less than 30 days after the disciplinary review board or, you know, a chief's finding, once we got rid of the disciplinary review boards, and it would consistently take 30 days just to set the day. So the chief was always untimely in his investigation -- in his chief's hearings, which then had an impact because then he didn't have the authority to really impose timeliness and decision making by command staff. And we would have to -- cases languishing out in the districts, and I keep checking, asking, "What's going on with this case? What's going on with this case?" And we wouldn't -- and "Oh, we're working on it" or "we're busy policing, you know we don't have time. We'll get to it when we have time." And it was only in very unusual cases where the chief would assign a commander to special
118
120
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 affect it has on officers? Q (BY MR. MOHAMEDBHAI) (Nodding head.) A So yeah, morale, faith in the system, and I'm sure I'm missing some other negative effects. It's just -- it's obviously not a good thing for the rank and file. It's not a good thing for the community. Q During your time as the Independent Monitor for the City and County of Denver, did most officer cases that required termination involve a video? A Probably not. Some did, but -- and, again, I'm sort of guessing a little bit here. You know, I haven't gone through and figured out the numbers, but I think most do not, because most deal with off-duty conduct, meaning the ones that involve termination. Q When there is an extremely long disciplinary review process, especially concerning excessive force matters, isn't there a potential harm that officers who should be removed from the street remain on the street and permitted to have repeat violations? A Absolutely. Q What steps did the Independent Monitor take in order to try to curtail this phenomenon of repeated force used and long disciplinary process? A And that was very difficult because, frankly, the ordinance did not permit -- or did not
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
assignment to just do a case. That happened maybe, oh, God, two or three times, maybe more. But it was very unusual. So these cases would languish in the district. Then when we had the disciplinary review boards, they would initially languish while they were trying to set up a date that fit with all the people on the board. And then when they changed it to picking the date and then finding people who would staff the board, it still -- it lengthened the review process by, on average, I had in one of my reports, but I'm trying to remember, 90 days to go from division chief finding to the disciplinary review board hearing and finding. And then another, you know, 45 to 60 days to get the chief's finding, and then it goes to the manager. So it was just this everywhere, every step, from the lieutenant who did the initial findings to the commander who reviewed those findings then made recommendations, to the division chief who, by the way, patrol division had -- patrol division, division chief had to do 80 percent of these reviews because most of them came out of patrol, so that would become a logjam to the disciplinary review board, to the chief's hearing. Every part of it was untimely. And under Manager LaCabe, oftentimes his decisions would be

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 talk in terms of giving the Monitor authority to have an impact on officer assignments. That's within the province of the chief. So I would, on occasion, confer with the chief. Obviously, I can't -MR. RICE: Not specifics. A But I would confer with the chief and let the chief know when I had concerns that a case was going on too long and an officer was working the street. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor ever request that officers be removed from the street during the pendency of an investigation? MR. RICE: Just as a general matter, you can answer that, but not any specific case. A Yes. Q (BY MR. MOHAMEDBHAI) Were the recommendations ever received well by the command staff of the Denver Police Department? MR. RICE: Same. A On occasion. Sometimes yes, sometimes no. Q (BY MR. MOHAMEDBHAI) In the Denver Diner case, did you ever communicate to the Denver Police Department any concerns that Officers Nixon and Devine should be removed from the street during the pendency
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
123
when the chief would assign somebody to put somebody in an assignment where they would not have either the ability to police on the street or they would be -have limited public contact or only public contact that was supervised or what have you. So there were certainly officers assigned to those positions. Q Was the "rubber-gun squad" used effectively during your time as the Independent Monitor for the City and County of Denver? A Well, one, I don't really like the term "rubber-gun squad" for Denver. It doesn't really quite fit. But sometimes yes, sometimes no. Q Are you aware whether Officer Nixon was placed on a "rubber-gun squad" of sorts prior to the Denver Diner incident? A You know, I do remember that he was removed -- or I'm sorry, I'm having a hard time. These are lots of different cases, so I'm trying to remember. No, okay. I was thinking of a different case. Ask me the question again. Q Are you aware of whether Officer Nixon was removed from his patrol duties and secondary employment authorization prior to the Denver Diner incident as a result of the Alexander Landau matter? A Okay. Now you've got me a little confused.
122
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the Internal Affairs review? MR. RICE: That goes to a specific case and his advice and consultation on same, so I object on the basis of deliberative process privilege. Q (BY MR. MOHAMEDBHAI) Did you have concerns, as the Independent Monitor for the City and County of Denver, that officers were not being removed from their patrol or street duties or secondary employment authorization during the pendency of Internal Affairs investigations? A At times. Q What is the "rubber-gun squad"? A That's New York City. They call their -they've got a squad of officers who are not, basically, permitted to police. So they are individuals who have been sustained or suspected of significant violations that they do not trust to have on the street anymore. So they put them in a place where they don't have to carry firearms, they don't have to police the city. Q During your time as the Independent Monitor for the City and County of Denver, did the Denver Police Department have a "rubber-gun squad"? A Of sorts. Denver is not large enough to have any one place where you can put all those officers in kind of a squad. But yes, there were numerous times
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
124
You just -- prior to -- oh, prior to Denver -- so you are asking for the Landau case, was he -MR. RICE: The question isn't what you recommended or your discussions. Were you aware of a fact? A I do not believe -- I mean, it's my current recollection -- again, I may not be right on this, but I do not believe that Officer Nixon was removed from duty as a result of the Landau case. I don't remember that as being an action taken. Again, remember, we're talking about, you know, thousands of cases and hundreds of officers, and so that's just not something that's necessarily going to come back to me. Q (BY MR. MOHAMEDBHAI) Did you recommend that Officer Nixon be removed from the street as part of the Alexander Landau case? MR. RICE: Object on the basis of deliberative process privilege. Q (BY MR. MOHAMEDBHAI) Did you recommend that Officer Nixon be removed from the street as a result of the Denver Diner cases? MR. RICE: Same objection. MR. MOHAMEDBHAI: Are you instructing him not to answer? MR. RICE: Yeah, I'm asserting privilege.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If I didn't instruct him not to answer, then we would lose the privilege. Q (BY MR. MOHAMEDBHAI) Did you recommend that Officer Devine be removed from the street during the pendency of the Denver Diner investigation? MR. RICE: Let me hear that one again. MR. MOHAMEDBHAI: I'll just say it again. MR. RICE: Okay. Q (BY MR. MOHAMEDBHAI) Did you recommend, as the former Independent Monitor for the City and County of Denver, that Officer Devine be removed from the street and authorized secondary employment as a result of the Denver Diner incident? MR. RICE: Same objection. Q (BY MR. MOHAMEDBHAI) What recommendations did you make, as the Independent Monitor for the City and County of Denver, to speed up the disciplinary review process for the Denver Diner cases? MR. RICE: No. I'm objecting on the basis of privilege. You've asked him for his recommendations on a specific case. And if you want to ask him about comments made in public reports on the topic, I don't have any problem with you asking those questions. A And I did make numerous comments in public reports on those topics.
127
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know that it's ferreted out. So I'm speaking on everything, okay. A And -Q So let me ask the question again with those assumptions. What public recommendations did you make to the City and County of Denver and the Denver Police Department on increasing the timeliness of the disciplinary process for officers who engage in excessive force or dishonest conduct? A And let me point out, just on the investigative side, I'm not remembering any public comments because I worked on that internally. On the command review side, so once the case goes from Internal Affairs to the command, I recommended that the chief insist that commanders be held accountable for untimely command reviews conducted at the district. I recommended that the chief evaluate the effectiveness of the disciplinary review board as it was taking -adding up to three months in the command review process. I recommended that the chief improve the timeliness of his chief's hearings and that he follow the goals that we put into place. I had actually put into place at the very beginning of the program and we worked on them, you know, changing a little bit over time, but goals for
126
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q (BY MR. MOHAMEDBHAI) Did you make any public comments concerning the Denver Diner cases? A No, other than what I mentioned previously, which would have been to report on the termination of the officers. Q What recommendations did you make to the City and County of Denver and its police department concerning speeding up its entire investigative process of officers who engage in excessive force or dishonest conduct? MR. RICE: And my only objection there is if you are going to speak about the things you reported on publicly, I don't have a problem with it. Other things, I think, are subject to privilege. THE DEPONENT: I think I got it. A Publicly, I reported on quite a number of issues. One of the things that we -- you're talking about the command review process or the investigation process? Q (BY MR. MOHAMEDBHAI) You know, I look at it, sir, as just -- I know that it's parsed out, right? A Right. Q I look at it as just a big, long process from internal -- from complaint to final disposition by the manager of safety, so that's how I look at this. I
128
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 timeliness of investigations of intake, of investigations, of command review, of disciplinary reviewboards, of chief's hearings, and what have you. And I consistently recommended to the department that they do their best to adhere to those goals in the significant majority of the cases and that if they -- I understood there was some cases where some of those goals would not be able to be made, but that as a systemic process, that they use those goals to help ensure timely adjudication of these complaints. Q Now, based on your recommendations -- strike that. Was it based upon your recommendations as the former Independent Monitor for the City and County of Denver that the DRB process was ultimately removed? A And I think that's deliberative. MR. RICE: Yeah. A That was discussions between me and the chief and the manager and the mayor. MR. RICE: I mean, there were public comments made on that. And if you want to speak to public comments, I don't have a problem with -A Yeah, and I fully supported -MR. MOHAMEDBHAI: So -- I mean, basically, when it's a favorable thing, you don't invoke the --

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RICE: No, no, not at all. I've read the reports. MR. MOHAMEDBHAI: You are going to pick and choose what time you are going to be invoking the deliberative process, because if you are, then I'm going to seek an entire waiver of the deliberative process privilege. MR. RICE: Mr. Mohamedbhai, you just have a way of trying to bully your way past things when it's not appropriate, all right. I've read his reports in preparation for this deposition, okay. And I read a number of them just last evening. And what I found in reading them was he made a number of public comments about DRB elimination, and I don't have any problem with him speaking to that. And I'm pointing that out so that we don't have to come back and do this later once you figure that out that it's in public comments, all right. On the other hand, as he said in his own answer, to the extent that there was a deliberative process between he and the chief that was not publicly reported on, that's what I'm objecting to. If you don't want him to answer, I don't care. But don't accuse me of being selective. I'm trying to be extraordinarily consistent in my objections.
131
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not name a name, name an officer or name a complainant. Q The restrictions imposed on you as the Independent Monitor on ability to make public statements seems to be inconsistent with transparency. Do you agree with that? A Not -- no. I mean, I -- there are certain balances. One of the problems is that if I were to criticize or publicly report on every recommendation I made that they accepted, the department accepted, the department would not have a great incentive to accept any more of my recommendations because they are going to get slapped regardless. So there is a public policy benefit to saying that, look, if they are going to go ahead and do what you recommend and do investigations that you believe are credible as a result, then you don't publicly report on them. So there is a benefit there. To what extent we should be able to report on, say, the chief's recommendation to the manager, I've always seen that as problematic. I felt the chief is a mayoral appointee. The chief should be able to be held accountable for his or her recommendations to -it's his recommendations to the manager. That, I've never been able to do, and that's something that I don't think is in the best public interest, but it is
130
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q (BY MR. MOHAMEDBHAI) When the Independent Monitor makes public recommend- -- strike that. Is there any restraints by the City and County of Denver of when you make your recommendations public? A Well, yeah, there is a balancing act. And the deliberative process privilege is -- limits my ability to publicly report. So I do not report on recommendations made by, you know, the lieutenants or the chiefs or the chief. I can only report out on the ultimate decision whether I believe it is reasonable or unreasonable. In the same sense, same thing for investigations, you know, if I make recommendations in investigation, if they are accepted, I can't publicly report on them. Now if they are not accepted and I believe that it was unreasonable not to accept them, then I can publicly report on it. So there are -- you know, there are significant restrictions in the public reporting in that regard. There are also restrictions in that I cannot name names. So even if a case had significant publicity and everyone knew, you know, what I was talking about, just because of the general nature of the report, I was the one person in the room who could
132
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what the statute requires or the ordinance requires. I am certainly willing to work within, understand that there are reasons why the City would want to protect the deliberative process and that -and I was more than willing to work within those restrictions because I felt in the end, the level of transparency provided by the City and County of Denver, through the Independent Monitor program, was higher than the level of transparency provided almost anywhere else in the country. So in that regard, I do not disagree that it is appropriate at times to have a balance between protecting privileges and -- you know, and transparency. Q Did the City and County of Denver enact any of your recommendations you made concerning the timeliness of the disciplinary review process? A Yes, certainly the disciplinary review board was disbanded. Yes and no with respect to some of the others. What I saw was improvement at some points, and other times, there was slippage. Q Were commanders ever held accountable for untimeliness issues in the disciplinary review process? A Not in the disciplinary review process. I do not know to what extent they were held accountable

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as far as personnel actions or assignments or what have you. That, I was not familiar with. Q What was your involvement with the Denver Diner case during your time as the Independent Monitor for the City and County of Denver? A I was involved -- I was initially notified of it. I assigned my senior deputy monitor to actively monitor the case. I would be generally notified of how the case was proceeding. I would have at least reviewed and -- I would have reviewed and approved any recommendations made during the course of the investigation by my senior deputy monitor. I believe that -- and he actively monitored all of it. I believe I actually went and monitored along with him some of the interviews, some of the reinterviews, I believe. I then -- my job was -- his job was to approve the investigation at the point that it was -he felt that it was appropriate and complete. Then it went out to command review. I reviewed the findings. I then assigned him to evaluate the findings and prepare recommendations. I then -- it was my job, then, to proffer those recommendations to command staff and take it up the chain of command, what have you, and then make formal recommendations to the chief and formal
135
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 improper because it's a discussion regarding privilege and so, therefore, it's consistent with local Rule 30.3. THE DEPONENT: And I'll point out, one of the things -MR. MOHAMEDBHAI: During the course of a deposition with a question pending? MR. RICE: Yeah, that's exactly what it is for, because you can have an off-the-record consultation to discuss privilege. That's what the rule says. MR. MOHAMEDBHAI: Fair enough. THE DEPONENT: And let me just also say, you know, I don't have an attorney here who is representing my interests -MR. MOHAMEDBHAI: Fair enough, Mr. Rosenthal. THE DEPONENT: -- so I've got to be careful. MR. MOHAMEDBHAI: I am not in any way -- go ahead. MR. RICE: And let's be clear, the privilege applies because it's the City's privilege, not Mr. Rosenthal's, okay. That is why it's important for him to talk to me as the City's attorney. A So it's my understanding -- on the record,
134
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recommendations to the manager. Q How would you compare the Office of the Independent Monitor's involvement in the Denver Diner case as opposed to a garden variety excessive force or dishonesty case? A It was intense. It was amongst one of the most involved we've been of any of the cases. Q Why was the Office of the Independent Monitor so intensely involved in the investigative review process of the Denver Diner cases? MR. RICE: To the extent this calls on you to get into what your advice and recommendations were and the consultations you had, I think that is objectionable. THE DEPONENT: Yeah, you know what, let me -- can we take a short break and let me confer with Mr. Rice, because I'm -- at this point, I'm feeling like I can't answer that question, but I'm -- I think it might be helpful if I chat with him little bit, just to see to what extent I can answer. Q (BY MR. MOHAMEDBHAI) Absolutely. It's technically improper pursuant to the rules, but -THE DEPONENT: Otherwise, my answer has to be I can't answer. MR. RICE: I don't think it's technically 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
136
it's my understanding that if I were to disclose privileged information, that I could potentially be held liable in some way, so -Q (BY MR. MOHAMEDBHAI) I doubt that -A I don't think I've. Q -- unless they turned around and sued you, but -A And I'm a former city employee, so I just -I don't feel that I am in a position to ignore counsel in regard to their privilege. Q Nor am I asking you to. THE VIDEOGRAPHER: We're off the record at 11:22. (Recess was taken from 11:22 a.m. to 11:29 a.m.) THE VIDEOGRAPHER: We're back on the record at 11:29. MR. RICE: So we've discussed the matter, and part of the answer has to do with things that are wholly unrelated to his consultation process with the Internal Affairs Bureau and the police department. And to that extent, I have no objection. To the extent, that it does get into those matters, I do. So I think he can partially answer your question. A So I can't -- I can't give the complete

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 answer, but I can say that the nature of the case where we have video, we had extensive use of force, we had reports that did not appear to match the video, and thus, we had issues of unnecessary, inappropriate force and commission of deceptive act. All would take this to a case that would get active monitoring, and then it would be actively -- or aggressively actively monitoring. In any case where we believe that there was the potentiality of serious discipline being imposed, that case would be assigned to be actively monitored. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor make recommendations to the Denver Police Department and the City and County of Denver upon Commander -- strike that -- Chief Klee's recommendations concerning the Denver Diner incident? MR. RICE: Just a fact of were recommendations made, yes or no. A So yes. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor make recommendations concerning Lieutenant Ciempa's recommendations based on the Internal Affairs investigation? A It doesn't quite work that way. What happens is the case goes to -- from Internal Affairs to
139
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 substance of -MR. MOHAMEDBHAI: I understand. I think he understands the contours of what he is supposed to say and not to say. THE DEPONENT: I'm okay. MR. MOHAMEDBHAI: So can I have -- can I read that question again, because all it does is muddies up the record, Mr. Rice. MR. RICE: Sorry, but I have to assert an objection when I think it's appropriate, all right. Whether it muddies up your record or not, I'm trying not to. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor make any findings concerning the integrity or quality of the investigation, as performed by Sergeant Shanna Clark of the Internal Affairs Bureau, concerning the Denver Diner cases? A Yes. Q Who did you make those recommendations to? A That's a little difficult to remember. I mean, it would have been -- the process that we use is we would first get a lieutenant in Internal Affairs. If we were not satisfied with the ultimate response, we would go to the commander of Internal Affairs. If we were not satisfied with that response, we would go to
138
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 command review. The lieutenant makes his findings. He then forwards it, without us seeing it, to the commander. The commander -- I'm trying to remember who was the commander then -MR. RICE: Ms. Dilley. A Was it Commander Dilley? So she then made her findings, which then included Lieutenant Ciempa's findings. They then went to Chief Klee. Chief Klee then made her findings. They came back to Internal Affairs. At that point, I review all the findings, and then I make recommendations to the deputy chief of patrol. Q (BY MR. MOHAMEDBHAI) Did the Internal -strike that. Did the Office of the Independent Monitor make recommendations or any findings concerning the integrity of the investigation performed by Sergeant Shanna Clark in the Internal Affairs Bureau? MR. RICE: That question is was there, in fact, any recommendation made? Q (BY MR. MOHAMEDBHAI) Well, did you understand the question? A Yeah, I did. I'm just -- I'm having to think. MR. RICE: I don't want him to get into the
140
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the deputy chief of administration who is in charge of Internal Affairs, and then we could potentially, and I'm just talking about a process now, we could potentially then take it up to the chief and the manager of safety. To what extent in this case, where we took it up, that, I do not remember. Q Who was the lieutenant at the time, and this would have been -- let me put a time frame for you -A That's not going to help. I can tell you the lieutenants in order. I cannot tell you the exact time frames that they were there. Q So who were the lieutenants that you generally communicated with in Internal Affairs while you were the Independent Monitor for the City and County of Denver? A Initially, it was Lieutenant Chuck and Lieutenant Montoya, and then Lieutenant Chuck got promoted to captain and Lieutenant Fountain took command. Then Lieutenant Montoya got promoted to captain, and Lieutenant -- I think Lieutenant Covey Hall took over. I'm trying to think if I'm missing a lieutenant here or not. I think that's it. And Lieutenant Hall and Lieutenant -- oh, I did miss one, Bill Mitchell. By the time I left, it was Bill Mitchell and Lieutenant Hall who were the two

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 lieutenants. Q Did you ever make recommendations directly to the chief of police or the manager of safety at any time concerning the Denver Diner incident? A Yes. Q What recommendations did you make to the manager of safety concerning the Denver Diner incident? MR. RICE: Object on the basis of deliberative process privilege. Q (BY MR. MOHAMEDBHAI) Were the recommendations that you made to the manager of safety implemented by the manager of safety? MR. RICE: Let me think about that. A I think I can answer along the line with that public report that the manager terminated the officers and I was not critical -- I merely reported it according to my protocols that if I felt that a decision was reasonable, that I would not be critical of it. Q (BY MR. MOHAMEDBHAI) Did you make any recommendations concerning the Civil Service Commission as it related to the Denver Diner incident? MR. RICE: To who? A No. MR. RICE: Then I object on the basis of
143
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 independent monitoring? MR. REYNOLDS: Object to form. A I don't necessarily think that civilian oversight or monitoring would do any good. MR. RICE: Could we take our break now? Q (BY MR. MOHAMEDBHAI) Why not? A And this -- I mean, this gets, sort of, more into personal opinion, so I'm a little hesitant because I've never publicly reported on it. This is just my own personal opinion based upon what I've read. MR. RICE: So I'm going to object on the basis that if he is not offering an opinion in his capacity as the Monitor, then I object to it. He has not been designated as a Rule 702 expert. Q (BY MR. MOHAMEDBHAI) Based on your experiences as the Independent Monitor for the City and County of Denver, why would monitoring of the Civil Service Commission have been ineffective? A I would say I think that the rules need to be definitively changed. MR. RICE: Counsel, we're at our agreed time for a break. It has nothing to do with the subject matter of the question. It's just that we're at our agreed break. MR. MOHAMEDBHAI: I understand.
142
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deliberative process privilege because it concerns a specific incident. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor ever make recommendations generally concerning the role and the functions of the Civil Service Commission? MR. RICE: And I'm going to object there unless you made public comment on same. A Right, and the answer is no, I did not make any public recommendations relating to the Civil Service Commission, which was arguably beyond my jurisdiction. You know, to the -- at a certain point in time, I might have felt comfortable reporting on unreasonable decisions made by civil service, but I was not appointed to monitor civil service as much as its affect on the department. Q (BY MR. MOHAMEDBHAI) Does the Civil Service Commission for the City and County of Denver require monitoring by an independent citizen oversight? MR. RICE: Are you asking for his opinion? A Now, you're asking for my personal opinion? MR. RICE: Are you asking for his opinion? Q (BY MR. MOHAMEDBHAI) Based on your observations and experiences as the Independent Monitor, does the Civil Service Commission also require
144 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE DEPONENT: And the break is until when? MR. RICE: Let's go off the record and we'll discuss. THE VIDEOGRAPHER: We're off the record at 11:40. (The deposition recessed at 11:40 p.m., to be reconvened at 1:30 p.m.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AFTERNOON SESSION 1:39 p.m. EXAMINATION (CONTINUED) THE VIDEOGRAPHER: We're back on the record at 1:39. Q (BY MR. MOHAMEDBHAI) Mr. Rosenthal, I was wondering if you could turn your attention to Exhibit 39. A Okay. Yes. Q Now, I'll give you a chance to review it briefly. I'm not going to ask you any questions about it. A Okay. (Deponent examines document.) Okay. Q Mr. Rosenthal, I'm showing you what's been marked as Exhibit 39, and the first page is marked Denver.Ortega 04702. And you had spoken briefly about a lieutenant whose last name was Fountain or -A Fountain. Q Fountain? A Spelled Fountain, but pronounced Fontain. Q Is this the Marcus Fountain as you discussed? A Yes. Q And you refer to him as "Lieutenant No"? A Yes. Q Why did you refer to Lieutenant Marcus
147
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 actively monitored by Senior Deputy Monitor Gregg Crittenden. Q And is Gregg Crittenden the same senior deputy monitor who you assigned to investigate the Denver Diner -A Assigned to monitor the Denver Diner case, yes. Q Okay. I would like to turn your attention to the second page of the Exhibit 39, which is Denver.Ortega 4707. You have written an e-mail to Gregg Crittenden that asks for an estimate of when he will be done with the Denver Diner memo. Do you see that? A Yes. Q What was the Denver Diner memo that Mr. Crittenden prepared for you? A And without going into details of what it contained, it was a memo that evaluated the case for what we determined or what we believed to be the appropriate findings and disciplinary recommendations. And I'm looking -- the problem is that -- yeah, because this follows inquiry from Chief Battista, it would not have been relating to the investigation. It would have been relating to findings and discipline. Q What types of information is found in that
146
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fountain -A Fountain. Q -- as "Lieutenant No"? A Because Lieutenant Fountain had a habit of simply saying no to any recommendation made by the Monitor's office and required us to go above his head in order to get recommendations implemented. Q Now, I'll represent to you, since you may not know, that the case number here, 2009-7045 is the Alexander Landau case number. A Oh, is it? Okay. Q What was Lieutenant Fountain's involvement in the Alexander Landau investigation? A Oh, boy, it's hard to remember. I'm assuming he may very well have been the lieutenant who was supervising the investigator. I can't -- I don't remember, though. There are two lieutenants in Internal Affairs, and it could have been Lieutenant Fountain, it could have been Lieutenant Hall, and I know they were both involved at various times in discussions relating to the Landau case. Q Did the Independent Monitor actively monitor the Alexander Landau investigation? A Once it was assigned for formal Internal Affairs investigation, we did, and that was also
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
148
memo that Mr. Crittenden prepared for you? A The type of information would be timelines, reviews of the video, comparison between the video and the reports written and the statements made by various officers, so it's an analysis. It's the work product of the Monitor's office to support recommendations made to Chief Battista and Chief Whitman. Q Are these types of memos generally disseminated if requested? A Dis- -- no, they are confidential, and they are sent for -- specifically for use by the command staff that is making the disciplinary decisions or recommendations to the manager of safety. Q Do you know who received this memo from the Denver Police Department -- strike that. Let me ask that again. Do you know who received the Independent Monitor's office memo concerning the Denver Diner incident from within the DPD? A I -- obviously, Chief Battista, Chief Whitman, I believe Chief Quinones. Those are the ones that I'm aware of. There may -- it may have also been distributed to Chief Klee, but that, I do not know. But I would have done it to the -- it's to the chain of command that's making the decisions on the case.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Does the memo get produced to the Citizen Oversight Board? A No. Q Does the memo get produced to anyone in the public? A No. Let me say, in the Citizen Oversight Board, that if the Citizen Oversight Board were to specifically ask to review information in this regard, I believe they would be given the ability to do so, but they would be required to keep it confidential. Q Could you turn your attention to the fourth page of Exhibit 39, which is Bates labeled Denver.Ortega 4739. A Okay. Q The subject matter of this e-mail from you to Lieutenant Mitchell is discussing Chief Quinones's command memo? A Yes. Q What was Chief Quinones's command memo? A Well, not going into the details of what it contains, it was after Chief Klee had made findings, Chief Whitman sent it to Chief Quinones when he became the division chief of patrol division to review the findings. And then Chief Quinones wrote up findings, his findings, recommendations, which we were given the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
151
changed from December 27, 2010, as it is found in its final form on January 19, 2011? MR. RICE: To the extent that this calls for him to testify as to what he recommended and what he advised, then I'm instructing him not to answer. Otherwise, you can answer that question. A Okay. I believe there were some changes. There was a lot of back and forth going on, so I can't say positively, but I believe there were some changes between the one that we initially received and the final one. Q (BY MR. MOHAMEDBHAI) Did Chief Quinones change any of his findings in the matter? A I believe so. Yeah, he would have been in the best position to say that one way or the other. Q What changes were -- strike that. What changes -- what findings were changed by Chief Quinones after January 27, 2010, during his back and forth with the Office of the Independent Monitor? A Oh, you mean December? You said January. Q Sorry, I misspoke. I'll say it again. A I really cannot remember. I -Q Okay. A You know, I'm not sure.
150
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opportunity to review. Q Could you turn your attention to Exhibit 24. A Okay. Q Was this the command memo that was produced to you? A I believe so. What was the other one we were looking at? I'm looking at the date. What was the prior exhibit we were just looking at? Q You were looking at -MR. RICE: 39, right? MR. MOHAMEDBHAI: Yes, the fourth page. A Let me see, so -- December 27th, right, so this -- we would have seen -- this would have been a final version. We would have seen a prior version then, because my memo says we need time to digest and respond to Chief Quinones's command memo. That's on December 27th, 2010. This one is dated January 19, 2011. So this would not have been the one I was referring to. This would have been the -- probably the final one that Chief Quinones wrote. Q (BY MR. MOHAMEDBHAI) Was there any back and forth between -- concerning Chief Quinones's ultimate recommendations concerning the Denver Diner incident? A Yes. Q Were any of Chief Quinones's opinions
152
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q What facts did the Office of the Independent Monitor rely on the most when making its recommendations concerning Officers Nixon and Devine in the Denver Diner incident? MR. RICE: Now you are getting into analysis because you are asking him to, by order, say what was most important to him. I think you can ask him what facts he had, and I don't have any problem with that, but when you start asking him to evaluate the facts, I think you've gone beyond what you are allowed to do and it's subject to the privilege. A And I already answered what I had. MR. RICE: You did. MR. MOHAMEDBHAI: So you are instructing him not to answer? MR. RICE: Yeah, if your question is asking him to order the facts in terms of what was most important to him, then I think you've asked for analysis, and I instruct not to answer on the basis of privilege. Q (BY MR. MOHAMEDBHAI) Did you make any recommendations to Chief Quinones to change any of his findings after December 27, 2010? MR. RICE: Can you read that back to me, please.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The last question was read back.) MR. RICE: You can answer if you made recommendations, but not the nature of the recommendation. Then that would be subject to privilege. A Right, I believe I did. But, again, we're talking about back and forth, and I can't remember specifically, but I think I looked at his original draft and I had recommendations. Q (BY MR. MOHAMEDBHAI) Were those recommendations implemented by Chief Quinones? A Given that I don't remember what they are, that's extremely hard to answer. Yeah, my concern is that my answer is -- it's too likely to be incorrect, so I just would have to say possibly -- not all -certainly not all of the recommendations, but a portion may have been. Q As the former Independent Monitor for the City and County of Denver, did Officer Nixon engage in excessive force as related to the Denver Diner incident? MR. RICE: You asked him for his analysis, and that's what's protected by the privilege, so I object. Q (BY MR. MOHAMEDBHAI) As the former
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
155
MR. RICE: I'll object to that as asked and answered, but go ahead. A Right. And as I said before, I reported on the decision and I was not critical of it, which, by my process, indicates that I believed that -- at a minimum, I believed that a reasonable person -reasonable manager could have reached those conclusions. Q (BY MR. MOHAMEDBHAI) Was the Office of the Independent Monitor critical of Chief Whitman's disciplinary recommendations, which were short of termination for Officers Nixon and Devine as it related to the Denver Diner incident? MR. RICE: That gets to his recommendation and advice and, therefore, object on the basis of the privilege. A And as I mentioned before, I was not permitted by ordinance to report on -- to support or criticize Chief Whitman's recommendation or disclose it in any way, in any case. Q (BY MR. MOHAMEDBHAI) Based on your experience as the Independent Monitor for the City and County of Denver, could reasonable people disagree as to whether Officer Nixon engaged in excessive force as it related to the Denver Diner incident?
154
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Independent Monitor for the City and County of Denver, did Officer Devine engage in excessive force as it relates to the Denver Diner incident? MR. RICE: Same objection. Q (BY MR. MOHAMEDBHAI) As the former Independent Monitor for the City and County of Denver, did Officer Nixon engage in dishonesty as it relates to the Denver Diner incident? MR. RICE: Same objection. Q (BY MR. MOHAMEDBHAI) As the former Independent Monitor for the City and County of Denver, did Officer Devine engage in dishonesty as it relates to the Denver Diner incident? MR. RICE: Same objection. MR. MOHAMEDBHAI: And the objection for the last four questions, Mr. Rice, is the deliberative process objection? MR. RICE: That's right. The questions all ask for his evaluation of the facts in a given case, it being the case involved here. We've asserted privilege to that. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor support the decision by Charley Garcia to terminate the employments of Officers Nixon and Devine as it related to the Denver Diner incident?
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
156
MR. RICE: You're trying to ask questions in such a way as to get around the privilege, but you are asking him for his evaluation of the facts in this case. And so are you asking him what he recommended and found at the time, or are you asking him for something different? MR. MOHAMEDBHAI: I asked him for exactly what the question said. MR. RICE: Yeah, but it's important, okay, because if you are asking him for what his analysis and recommendations were, then that gets to the privileged matter. MR. MOHAMEDBHAI: I didn't ask him that. MR. REYNOLDS: I object to form. MR. RICE: Read the question back. (The last question was read back.) MR. RICE: I think that goes to the heart of his evaluation of this case, and therefore, I object on the basis of privilege. Q (BY MR. MOHAMEDBHAI) Did you use the Denver Diner case in any of your public reports? A No, I think I already answered that. Other than the reporting in the quarterly report on the termination of the officers, no. And then there also would have been a reference to the termination in the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 annual report, but, again, no discussion other than a brief summary of the facts underlying the incident and the disciplinary decision that was imposed. Q Based on your experience as the Independent Monitor for the City and County of Denver and your experience in public safety and law enforcement, could reasonable people actually disagree as to whether Officer Devine engaged in excessive force as it relates to the Denver Diner incident? MR. RICE: It's the same objection. MR. REYNOLDS: Object to form. MR. RICE: That's part of the privilege. You're asking for his evaluation of this case. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor support manager Charley Garcia's decision as it related to the DeHerrera case?
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
159
Q (BY MR. MOHAMEDBHAI) Could you turn your attention to Exhibit 43. A Okay. Yes. Q What is Exhibit 43? A That is my last quarterly report that I wrote before I left Denver to take my new job. Q On the -A Or it's a portion of that report. Q On the second page of Exhibit 43 that talks about case-specific issues and concerns, and it says Case 1 -MR. RICE: What's the page number so I can follow? Doesn't it have a page number? THE DEPONENT: It does not. It's Chapter 4. MR. RICE: Okay. A Yes, okay. MR. RICE: Thank you. Q (BY MR. MOHAMEDBHAI) What case is Case 1, as it's found on the second page of Exhibit 43? THE DEPONENT: Am I allowed to answer that? MR. RICE: Well, let me think about that for a second. No, I think under the ordinance, you are not. THE DEPONENT: Under the ordinance, I am not.
158
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
160
MR. RICE: Right, so I object. MR. MOHAMEDBHAI: Based on the ordinance? MR. RICE: Yeah, the ordinance is the matter that creates the privilege. MR. MOHAMEDBHAI: In a federal court litigation, you are invoking the Denver Municipal Code ordinance and instructing him not to answer. MR. RICE: No, Q, we've already had this argument, okay. In order to have a federally recognized deliberative process privilege, there has to be factual underpinnings to support that. The factual underpinning here is the ordinance, which is the enabling legislation that even created this office and created the structure by which what he would do would be operate under a deliberative process privilege. MR. MOHAMEDBHAI: So you are invoking the deliberative process privilege as it relates to Exhibit 43 and my question about identifying these cases based on the municipal ordinance; is that correct? MR. RICE: No, the municipal ordinance -well, I just explained it. I don't need to argue with you about it. Yes, I'm invoking -MR. MOHAMEDBHAI: I'm not arguing, Mr. Rice. This stuff will be brought up with the magistrate.
22 23 24 25
. MR. RICE: What I'll do is I'll assign confidentiality to that under the protective order, but for purposes of the answer to the question, that was exactly what I thought was appropriate.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RICE: You asked me the same question that I just answered, was whether or not I was invoking it based on the ordinance. I gave you the basis upon which I invoked the ordinance. I think -- I can't say anything more than that. Q (BY MR. MOHAMEDBHAI) Case 2, as found on Exhibit 43, which is Chapter 4 of your fourth quarter report of 2011, which case are you mentioning here, Mr. Rosenthal? MR. RICE: I think it's the same objection. Q (BY MR. MOHAMEDBHAI) Case 3, which is found on Exhibit 43, which is Chapter 4 of the fourth quarter report of 2011, what case are you referring to here? MR. RICE: Same objection. Q (BY MR. MOHAMEDBHAI) On the next page where it says, "Monitor's Decision to Not Certify an IAB Investigation as 'Thorough & Complete,'" as found in Chapter 4 of Exhibit 43, what case are you referring to here? MR. RICE: Same objection. Q (BY MR. MOHAMEDBHAI) This is a case that involves serious allegations of misconduct, Mr. Rosenthal? A Yes. Q What happened in this case?
163
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 officer, indicating during the course of their questioning and before all the facts were obtained that they believed the officer had not committed any serious violation, as alleged. And then finally, that the investigative summary, which is used by command staff as a method by which they evaluate or that -- it's the start of the evaluation of the command review process, that it was -- had significant deficiencies, inaccuracies, and such that it was biased and was problematic as far as being professional work product. Q What were the underlying facts that you considered prior to making this determination that you would not certify an IAB investigation as thorough and complete? A The issue was trying -- and this was actually very difficult, but trying to determine to what extent an inadequate investigation made it impossible to have adequate findings. And so, for example, there were a number of investigations which we did certify as thorough and complete that we were not happy with, that we felt that there were leading and suggestive questions or the original investigative summary was inadequate or there was bias, but in prior cases, we concluded that
162
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RICE: I mean, other than what it says in the note? A And I'm taking that question to mean give more detail as to the facts underlying the case or the allegations? Q (BY MR. MOHAMEDBHAI) Yes. MR. RICE: I think that you can ask him about what's in the public report, but anything beyond that is subject to privilege. Q (BY MR. MOHAMEDBHAI) What are the facts that you considered when you made this decision to not certify this as a thorough and complete investigation, as found in Chapter 43? A Well, it's really stated in the report. We found that IAB investigators were asking leading and suggestive questions; that the staff, Internal Affairs staff, failed to interview all necessary witnesses before interviewing the subject officer, which is not in accord with normal practice and which resulted in accurate information being provided to the subject officer during this interview requiring a reinterview, which potentially impacted the subject officer's ability to recollect. And in addition, the investigating officers exhibited significant bias in favor of the subject
164
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 additional investigation that we requested had mitigated the problems to the effect that we felt that the department could likely come up with reasonable findings. In this one, and it's a little speculative, we had to come down and say we were concerned that any findings would actually be negatively impacted by the insufficient investigation. So this was the only case where -- in my six years, where I had refused to certify the investigation. Q Did the Independent Monitor perform any independent investigation into the Denver Diner incident? A No. And if I can point out, under ordinance, we are only permitted to conduct additional investigation if the department -- if we requested the department to do so and they failed to do so. And only under that circumstance would we be permitted to conduct an independent investigation. Q Does the Denver Police Department have a problem with the Blue Code of Silence? A Every department has a problem with the code of silence, and Denver is no exception. Q Does the Denver Police Department have a problem with its officers engaging in excessive force?

***CONTAINS CONFIDENTIAL TESTIMONY*** AGREN BLANDO COURT REPORTING & VIDEO INC 165 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I think, again, if we go back to the same answer I gave before, which is that I cannot say. What I can say is that I had issues and concerns relating to how those cases were investigated and findings that were made and discipline that was imposed in those cases that I became aware of and of which I have facts placed in front of me, but I do not feel comfortable saying that it has a problem with excessive force on a systemic level because that's not something -- I simply don't have evidence to reach a conclusion. Q I would like to turn your attention to the second-to-last page of Exhibit 43. That's the lack of timeliness in the DPD command review process. A That's 43? Q Yes. Second-to-last page. A Oh, I got it. Q In your fourth quarter report of 2011, the Independent Monitor notes a lack of timeliness in the DPD command review process, correct? A Correct. Q What are the facts that the Independent Monitor reviewed prior to making this observation? A Well, what we do is we have access to the Internal Affairs database, the CUFFS database. I have an analyst on staff, and he is able to provide me with 166
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
167
person claims injury or an impact weapon is used or there was an injury prior to arrest where a person can claim that the officer may have committed the injury. And those reports are then a -- canned reports are filled out in each case that include everything from the date, the time, the location of the incident, the individuals involved, the type of force that's used, the type of impact weapon, just a large amount of data, much of which is then entered into the CUFFS database by Internal Affairs staff. Q Does the Denver Police Department have a fairly rigorous statistical record it keeps of its officers' conduct? A Yeah. I mean, it's -- what I would refer to it as the early intervention system they have is a robust system that, frankly, is better than the vast majority that exists anywhere else in the country. Q In the conclusion of your fourth quarter report of 2011, as found on Exhibit 43, it states, quote, the office -- "The Monitor's Office has noted, during the past year," there have been -- "that there has been a high level of resistance to OIM recommendations intended to ensure thorough and complete investigations and appropriate documentation of those investigations."
168
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q What recommendations of the Independent Monitor, as noted in its public report, was there a high level of resistance with by the Denver Police Department? MR. RICE: Are you asking for specific cases? MR. MOHAMEDBHAI: Yes. MR. RICE: I think you can answer to the extent that it's set forth in your public report here, but providing names of cases, I think, would be inappropriate. THE DEPONENT: Right. MR. MOHAMEDBHAI: Are you invoking the privilege? MR. RICE: Yeah, right, exactly. MR. MOHAMEDBHAI: Even though it's found in this report? MR. RICE: Yeah, I told him whatever supports that, he can answer without giving the name of specific cases. MR. MOHAMEDBHAI: And -A I mean, I think what I tried to do, obviously, in the report was use these prior cases as examples which support the conclusion. So, you know, I
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
printouts or reports, as requested, on how long cases have been out at command staff. There is actually a -I remember on this one in particular, there is a canned report, which was created by Internal Affairs upon our request of the -- well, it was modified so that it would allow us to identify cases that were overdue at the district. So formal Internal Affairs investigations that had been submitted to the district that were over the goals in timeliness, and I would have used those reports from the database in order to come up with these numbers and these conclusions. Q What statistics does the Office of the Independent Monitor compile as it concerns use of force? A Well, the Monitor's office doesn't compile any statistics. The statistics on use of force are compiled by the department, entered into the CUFFS database, and then my staff has access to the database for analysis in order to conduct analysis. Q What types of statistics does the Denver Police Department compile as it relates to its officers' use of force? A Well, they have use-of-force reports, which officers are required to fill out in each and every case where there is either injury to the person or the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would have to go back and just -- it's right there already in the report where I talk about, you know, in Case 1 where officers immediately -- they failed to immediately identify witness officers until it was too late to conduct a credible investigation. I mean, I'm not sure exactly what else I can say. The -- I mean, our recommendations, I think in general, I can say, are -- you know, involved making sure that all appropriate witnesses were interviewed, that all witness interviews were appropriately documented and fully documented, that appropriate follow-up questions were asked; that, you know, instead of -- that additional specifications that might come out from an investigation, if you do appropriate follow-up, that they were added into the investigations; that, you know, all applicable questions relating to the case and anything else you might -- that you could legitimately learn from the case, that all those were asked, and those were the problems that we were having. And we specifically had problems with, again, the use-of-force cases and cases involving allegations or concerns about commission of deceptive acts. Q (BY MR. MOHAMEDBHAI) Would the Office of the
171
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reduce the likelihood in certain cases, of officers' receiving discipline pursuant to the Matrix." A Correct. Q Do you see that? A Mm-hmm. Q How does bias amongst IAB investigators and supervisors limit the likelihood of officers receiving discipline? A The problem is that if you're biased in your investigation, then it has the potentiality of you not asking the right questions, not following up on otherwise legitimate areas of inquiry. The longer it takes -- and then when you add in untimeliness investigations and command review, it makes it impossible at a certain point for cases to be proven as to certain allegations. It's very difficult to establish which cases really put you in that kind of position because you have to be a bit of a fortune teller. You have to, you know, in essence, go back in time and say, "Well, if we had asked this question, would we have learned more that would have resulted in -- led to a different result?" And it's very difficult to conclusively establish that. In one case, we felt that there was at least enough reason to believe that that I was willing
170
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Independent Monitor be able to request statistics from the Denver Police Department on how many complaints of unnecessary force have been made and how many have been sustained? A We would not have to request. We have access to it, and my analyst would simply compile that information. Chief used to have to ask us, because we were the only ones who had the ability to mine the database other than technology services, who can take weeks or months, if they could ever do it. Q You note in your fourth quarter report in the conclusion, quote, "Bias on the part of Internal Affairs Bureau investigators and supervisors has been documented in many cases over the past year." A Correct. Q Approximately how many cases were there in which there were issues of bias on the part of IAB investigators and supervisors? A To give a number, I would have to go back through my monitoring logs, but -- I mean, there were certainly enough to get our attention where it seemed to be a practice amongst the investigators of either having or being biased. Q And as a result of this bias, you state, "The Internal Affairs Bureau staffs' actions could
172
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to state that publicly. One of the things I used to say at the beginning and when the Internal Affairs was operating appropriately, there was a lot of bias on the investigators, but we didn't care. You know, as long as the investigator asks the right questions, as long as they followed up appropriately, whether they were biased in favor of the complainant or the subject officer almost didn't matter. You know, I used to say, "I don't need their hearts. I just need their minds." But there is a certain point at which when the bias manifests itself in leading the suggestive questions that could potentially change an officer's statement or failure to follow up on investigative leads that result in the -- our inability to identify additional witnesses, our inability to locate evidence that would conclusively establish one way or the other information, when the bias has that impact, then you're in a position where you no longer have integrity in the process, and you can't be assured that the right decisions are being reached. Q On the last sentence, it says, "The Manager of Safety and the new Chief of Police must change the current culture in IA to ensure unbiased, thorough and complete investigations and appropriate documentation

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of such investigations." A Correct. Q What was the culture of IA as it related to investigations of law enforcement excessive force and dishonest practices? A It was very defensive. It was very resistant to oversight. It was resistant to any suggestions from any outsider, and it was just -- it was a difficult group of investigators to monitor and work with, because they would not work with the Monitor's office. Q What are the specific cases that you reviewed in order to come up with your opinion that there was a culture of defensiveness and bias within the Internal Affairs Bureau? A Well, the cases referred to in this report were part of it. They were certainly a start. And then there were additional cases where we had concerns, substantial concerns, but in the end, if the command staff made the right decision, then I did not criticize the investigation. And so it actually was -- what became problematic over time is that we were almost enabling Internal Affairs to conduct poor investigations where as long as the command staff fixed it and reached a
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
175
Q The Citizen Oversight Board discusses surveys conducted by the COB in order to evaluate the Monitor's performance. Do you see that? A Mm-hmm, yes. Q What are the surveys done by the Citizen Oversight Board in order to monitor the Independent Monitor? A Actually, I'm not sure I even saw these surveys this year. They would have been distributed to my staff, and I don't recall actually having seen them. I certainly didn't see the final, you know, the filled-out ones. I'm not even sure I saw the blank ones. I guess it's possible, but I don't remember seeing them, and I could certainly understand if they didn't want to show them to me. Q What is the Citizen Oversight Board? A The Citizen Oversight Board is a group of seven members of the community who were appointed by the mayor and confirmed by council to four-year terms. Their job is to primarily oversee the Monitor's office, is to evaluate effectiveness of the Monitor program, and then make recommendations to the Monitor, to the chief, to the manager of safety, and the undersheriff about policy issues relating -- that come up during the course of their activities.
174
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 good conclusion, then they knew that they would not be publicly criticized, because I was not going to publicly criticize an investigation where the right conclusion had been reached, which would then undermine the ability of the department to defend a good decision. Q Can you tell me the name of certain cases that you reviewed that led you to the belief that there was a practice of biased investigations by the Internal Affairs Bureau? MR. RICE: I think we've already been over that. We've already objected to the three cases that he listed specific in here. So I would interpose the same objection. Q (BY MR. MOHAMEDBHAI) Were your analysts readily able to mine the DPD databases and statistics in order for you to compile the information that you did? A Oh, yes, and it's one analyst. Q Could you turn your attention to Exhibit 67, sir. A Okay. Q Could you turn your attention to COB-6 of Exhibit 67. A Okay.
176
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Monitor meets with the Citizen Oversight Board twice a month in executive session, discusses individual cases with the board and challenges that are faced and successes and failures and what have you, and just really briefs them on how the program is working. And then in certain individual cases, lets the COB know when there are specific problems or bad decisions or gives -- and gives them notice of potentially critical reports that may be written. Q What is the relationship between the Independent Monitor and the Citizen Oversight Board? A And I'm not sure I know what you mean by "relationship." Personal, professional, ordinance? Q Yeah. I mean, it's more just a general question, sir. How does the Independent Monitor and the Citizen Oversight Board work together? A Well, first, the Citizen Oversight Board is not the boss of the Monitor, so to speak. The mayor is the boss of the Monitor. The Citizen Oversight Board is -- really, it's an independent board that can potentially be critical of the work of the Monitor or the Monitor program and can also be supportive. The Citizen Oversight Board at certain periods would make certain recommendations in support of Monitor recommendations. Does that answer the question?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Has the Citizen Oversight Board historically ever been critical of the Independent Monitor's office? A Publicly or privately? Q Either. A And I don't know if deliberative process covers the private. MR. RICE: I think to the extent that you provide advice and recommendations to them, it is covered. A All right. Yeah, it's -- really, they provide advice and counsel to me. MR. RICE: Well, but it goes the other way, too. A Yeah, and they are subject to the deliberative process privilege -MR. RICE: They are. A -- in the ordinance as well. So I'm not sure -- so it doesn't sound like I can answer specifics as to whether there is critical -- criticism back or forth. MR. RICE: I took the question as being more general. MR. MOHAMEDBHAI: I did. It was a general question. A Then you are going to have to ask it again.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
179
entries into residences? A Okay. Well, as I discussed previously, we had concerns when there would be complaints that would come out and it would be clear that an officer did not follow the law in making an entry and made an entry without consent or exigent circumstances or a warrant, and command staff would exonerate the officer and try to decline the case. And we had quite a few -- we had a number of these cases occur over the years, and it seemed to be a constant problem where when we made recommendations for just counseling and debriefing of the officers, not even requesting discipline, that there would be a justify-and-defend mentality by command staff, and that is something that I reported in my annual reports for three running years. And obviously, I advised the Citizen Oversight Board as well of that issue. Q Did you observe a practice of Denver police officers to unlawfully enter into residences? A Well, again, that's part of the problem, is I don't know whether there was a practice or not. What I do know is that what I saw was likely the tip of the iceberg, but we couldn't prove it one way or the other. But -- and what we could establish is that when these cases came to the attention of the department, that
178
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I'm sorry. I must have misunderstood. MR. RICE: That's why I didn't object. Q (BY MR. MOHAMEDBHAI) And you don't get to start objecting. A I'm sorry. If you could ask it again then. Q Sure. Has the Citizen Oversight Board ever been critical of the Independent Monitor's office? A Publicly, I don't think so. I mean, there is -- it depends. When you say "critical," they've certainly made suggestions on ways to improve, but as far as being, you know, overtly critical of the Monitor, no, not that I can think of. Q Does the Citizen Oversight Board rubber stamp everything that the Independent Monitor's office does? A No. There is healthy debate and discussion in executive session, and there are times when we disagree. As we know, reasonable people can differ at times. I couldn't have controlled those seven if I tried. Q If you could turn your attention to COB-8 in Exhibit 67. A Mm-hmm. Q What were the concerns of the Independent Monitor concerning Denver police officers' unlawful
180
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they were not being handled appropriately. Q Was there a practice of failure to discipline officers who unlawfully entered into residences? A Yes, but I agreed with the practice in the sense that I felt that the search and seizure law is very complex and changing. There are those occasional cases where if you can establish that an officer intentionally and deliberately violated somebody's rights, then that would warrant the formal investigation of the imposition of discipline. However, in those cases where the officer was trying to do the right thing, when they were concerned about officer safety and concern about the safety of a member of the community, then it was my belief that training and counseling of that officer would be sufficient and -- to ensure, you know, a reduction in the risk of this happening again. So it was my position that in the significant majority of these cases, discipline was not needed, but a robust training, counseling, and, you know, evaluation process was necessary. Q Was there a resistance to implementing additional training and counseling as it related to officers entering into residences?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A There was no resistance as far as overall training, you know, in general training for the entire department and the creation of, you know, training memos. There was extraordinary resistance to any attempt to basically say that an officer violated some constitutional rights and then needed to be counseled individually. Q Based on your observations, why was there a resistance to this individualized training during the time that you were the Independent Monitor? A And what I saw was sergeants, lieutenants, commanders who were more interested in justifying and defending officer conduct than holding their officers accountable. They did not want to admit violations for liability purposes. They did not want to admit violations because officers would then potentially react negatively. Q Let's go to Number 2 on COB-8, as found on Exhibit 67, which is the decreased quality of DPD Internal Affairs investigations. A Correct. Q During your time as the Independent Monitor for the City and County of Denver, did you observe a decreased quality of DPD Internal Affairs investigations?
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
183
for the City and County of Denver, was there a practice with Internal Affairs Bureau sergeants and lieutenants to thwart or undermine the efforts of the Office of the Independent Monitor? A Yes. Q During your time as the Independent Monitor for the City and County of Denver, was there an increase of IAB investigators asking leading and suggestive questions that appeared to be designed to guide officers and/or witnesses to give answers that would lead to lesser discipline or no discipline at all for subject officers? A Yes. Q Did the Office of the Independent Monitor ever recommend training to IAB investigators concerning interrogation techniques? A In general, yes. We would also notify Internal Affairs command staff whenever we believed that an investigator had acted either inappropriately or incompetently. And obviously, the implicit statement there was that if they need extra training, they need additional training, but it was not within our jurisdiction to specifically recommend additional or a specific type of training for Internal Affairs. Q Could the Internal Affairs Bureau and its
182
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q During your time as the Independent Monitor for the City and County of Denver, was there a decrease in good faith collaboration between the IAB and OIM in disciplinary Internal Affairs investigations? A Yes. Q Why is it important for the OIM and IAB to collaborate in good faith as it relates to officers' investigations? A Because the program doesn't work otherwise. The whole concept is that the Monitor's office needs complete access to Internal Affairs, Internal Affairs investigators, and Internal Affairs files in order to adequately monitor them and make legitimate recommendations that ensure a high quality of investigations. A refusal to collaborate means that notifications are not made in a timely manner, that questions were asked in an effort to thwart directions that the mayors's office believes need to be -- or issues that need to be evaluated, that timeliness is impacted because there has to be continuous appeals of Internal Affairs decisions to command staff in order to get the right thing to be done. Q During your time as the Independent Monitor 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
184
investigators use additional training on interrogation techniques? A Yes. Q Did the quality of IAB investigators decrease over time when you were the Independent Monitor for the City and County of Denver? A That's hard to say. I'm not sure I would say that the quality of investigators decreased as much as the quality of the investigations decreased. Q Was any additional training implemented for IAB investigators and their investigative techniques based on the Independent Monitor's recommendations? A Well, I can't say whether they were based upon the Independent Monitor's recommendations. That, I do not know. I do know that there was additional training provided. There were even -- I think it was two investigators who were sent to the Public Agency Training Council advanced Internal Affairs training, of which I was one of the instructors. Q Based on your observations as the Independent Monitor, did this training by -- given to IAB investigators result in an increase in the quality of investigations? A Well, the individuals whose training I knew of, it was towards the end of my tenure. So whatever

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 training was provided, and I'm not familiar with what additional training was provided, but whatever additional training that was provided did not, at least during my tenure, have an impact, a positive impact on investigations as far as I could tell. Q C -- strike that. Paragraph C of -- strike that. Subsection C of Paragraph 2, found on COB-8 in Exhibit 67 says, "Poor documentation of significant investigations, which has hindered the OIM's ability to effectively monitor formal investigations." Was there poor documentation in the investigation of the Denver Diner case? MR. RICE: I think you're calling for his evaluation of a specific case now at this point, so I think that you've intruded on the privilege again. So I'm instructing him not to answer. Q (BY MR. MOHAMEDBHAI) Was there any inability for the OIM to monitor the Denver Diner case based on poor documentation by the investigation and investigators? MR. RICE: Can I hear that back? MR. MOHAMEDBHAI: Sure, I misspoke at the end. Q (BY MR. MOHAMEDBHAI) Strike that. Was there
187
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the pattern of poor investigations, as you observed by the IAB department of the Denver Police Department? A That's a very difficult question. I would say that there was -- if in a case it could be established, it would have to be able to be established that, one, the improper investigation had a negative impact on the department's ability to conduct it, to reach appropriate findings; and two, that the investigator intentionally did it. It wasn't about lack of training, but it was intentional and deliberate. That would be extremely difficult to prove. So I don't -- the question was again? I'm sorry. Q I think you answered it, actually. A All right. Q The Independent Monitor noted that there is a tendency of IAB at times to reflexively justify and -(Reporter requested clarification.) Q (BY MR. MOHAMEDBHAI) Strike that new question. As found in Subsection (e) of Paragraph 2 on COB-8 in Exhibit 67, The COB attributes to the OIM "a tendency by IAB to, at times, reflexively justify and defend officer conduct, especially in cases involving
186
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any inability for the OIM to monitor the Denver Diner investigations due to poor documentation? THE DEPONENT: Do you think I can answer that? MR. RICE: Yeah. I think he is just asking you if there is inability, so -A No, there was no inability to monitor Denver Diner. Q (BY MR. MOHAMEDBHAI) What cases was there poor documentation, which hindered the ability of OIM to effectively Monitor formal investigations? MR. RICE: And to the extent that you reported on such in a public report, then you can answer it. But if you haven't, then that would be subject to privilege. A Right. I really did not report publicly on the poor documentation practices because in the end, we were generally able to get the documentation put into place before the conclusion of the investigation. So that did not get publicly reported. Q (BY MR. MOHAMEDBHAI) Was there any discipline to IAB, law enforcement officers concerning biased or poor investigations? A No. Q Would discipline have been appropriate for
188 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 allegations of unlawful entry, search and seizure, use of force, or departing from the truth"; is that correct? A Yes. Q Based on your time as the Independent Monitor for the City and County of Denver, did you observe a practice of IAB to reflexively justify officers' conduct in use of force, departing from the truth, and search and seizure cases? A Yes, but the caveat -- certainly in search and seizure cases, certainly in departing from the truth cases. Use of force is more difficult because you used the term "pattern"? Q Yes. A Did you? The problem with use-of-force cases is most of them are impossible to prove or difficult to prove. It's -- most agencies, I saw a Department of Justice finding that 11 percent or something of use-of-force cases were sustained, you know, in departments nationwide, and it was clear that they had it wrong, because I've never seen a department, and I've worked with now a dozen departments, that's ever had a sustained rate on use-of-force cases of more than 1 percent. They are just extraordinarily difficult to prove. Officers have

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 an enormous amount of discretion in the use of force. You have, more often than not, witnesses have biases or interests. Even if you have video, sometimes the video is difficult to -- it's difficult to see exactly what happened at the right times, so they are very difficult to prove. So the problem is that I only saw a few use-of-force cases that I thought could be proven. So if the department doesn't handle those adequately, is that a pattern? And I'm not sure I can say that that's a pattern. Q Do you have an understanding as to how the Department of Justice came up with its figure that 11 percent of excessive force cases should be sustained in any given police department? A And, again, I'm probably wrong on the number. It was certainly higher than 1 percent, but the -- what I felt happened was that they probably didn't ask the right questions, and so you may have a case involving discourtesy, inappropriate force, and, you know, search and seizure, and they may sustain for discourtesy, but that, then, got counted as sustained on a case involving force. There are other departments that they talk about force. And, you know, there are different
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
191
MR. RICE: All right. I think you can answer that question. A You know, I -- actually, I don't think the Denver Diner case was. It would not have been one of the cases I would have used to justify that finding. Q (BY MR. MOHAMEDBHAI) What did you -- strike that. What did the Office of the Independent Monitor take away from how the Denver Diner case was investigated and ultimately handled? A What did we take away? I'm just trying to figure out how that can be answered without going through the deliberative process, because it requires me to talk about legitimacy of the findings based upon the investigation. MR. RICE: If you can't answer without getting into the deliberative process, then I instruct you not to answer. If you can without doing so, feel free to. A Give me the question one more time, and I'll see if I can figure it out. Q (BY MR. MOHAMEDBHAI) What was learned and taken away as a result of the monitoring of the Denver Diner investigation? A Yeah, the problem is that that all deals
190
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 definitions of force. Portland Police Bureau called -referred to control techniques, which Denver Police Department would call force. So, again, it's highly speculative. I just knew that what they reported and what I saw were -- there was a significant dichotomy or "disparity" might be the better word. Q Did IAB reflexively justify or defend Officers Nixon and Devine's conduct in the Denver Diner cases? MR. RICE: You're talking now about his collaboration with them, and I think that gets into the deliberative process privilege, the consultation he had on that particular case. So I object on the basis of privilege. Q (BY MR. MOHAMEDBHAI) Was the Denver Diner case part of the cases that you monitored that resulted in your observation of the tendency for IAB or DPD senior staff to reflexively justify officer conduct? MR. RICE: I think the question is, was the Denver Diner case a part of what's reported here in Subparagraph (e)? Is that really what you're asking? MR. MOHAMEDBHAI: Yes. MR. RICE: Okay. MR. MOHAMEDBHAI: That would be a fair summary.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
192
with my communications with command staff and what I learned from the discussions about their findings, their conclusions and their decision making. So I don't think I can answer that without disclosing the deliberative process information. Q Was the Denver Diner investigation performed by IAB a good, thorough, and complete investigation? MR. RICE: Object on the basis of the privilege, calls for his evaluation of this specific case. Q (BY MR. MOHAMEDBHAI) The Independent Monitor recommended that DPD should staff the Internal Affairs Bureau with more experienced and better trained investigators? A Where are you? Are you looking at a particular spot, or are you just -Q I know that you always have to check to make sure that it's public, but yes, it's A at the end, full sentence -A I'm sorry. You need to show me. Where is it again? Q Fourth sentence from the bottom. A Because I didn't write this report, so I'm not familiar -- in fact, I think I just skimmed it because it was -- I was already gone by the time this

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 report came out, but -Q Okay. A You are going to have to show me. Q Going into (a), (b) -A Okay. These are recommendations by the Citizen Oversight Board. Q Okay. Let's go into that. The Citizen Oversight Board recommends that DPD should staff IAB with more experienced and better trained investigators. Do you see that? A Yes. Q Based on your tenure as the Independent Monitor for the City and County of Denver, do you agree with that recommendation? A Yes. Q The Citizen Oversight Board recommends in (b), "In order to reduce the risk of investigator bias, IAB should consider the feasibility of using retired investigators and/or detectives who may be willing to contract with DPD to perform Internal Affairs investigations." Do you see that? A Yes. Q Do you agree with that recommendation? A Yes. Q Why would you recommend the use of retired
195
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 investigative experience have the potential of, again, being able to see beyond their biases and conduct professional thorough investigations regardless of the consequences. Q Based on your observations while you were the Independent Monitor for the City and County of Denver, when it was an officer's word against a citizen's word, would the outcome always be that it was an unsustained finding against the officer? A Yes. Q Is that concerning to you? A In most cases, no. The reality is tie does go to the officer. It needs to go to the officer. The officer is the employee. Unless you can establish that -- and you have to prove the misconduct, so if you've got -- if it's a, lack of a better term, "he said/she said" in general, you're not going to be able to prove it one way or the other. And the reality is nationwide, the vast majority of these cases end up not sustained, not exonerated or unfounded or sustained because you don't know what happened, you can't prove it. There are cases, however, where the officer's statement simply didn't make sense and the complainant's did or there was some objective evidence
194
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 investigators and/or detectives who would be willing to contract with the DPD as opposed to investigators who are currently on payroll by the Denver Police Department? A What I found when I worked in Portland, was that we used some retired investigators and they tended to be less biased, less of a connection with officers, because currently, if you're using current sergeants, they are expecting to leave Internal Affairs and go have to work with, for, or supervise individuals that they are questioning and they are investigating. So there is this potential recalcitrance on their part to burning bridges while they are in Internal Affairs. If you are a retired officer or investigator, you don't have that concern. They are also a little bit more removed from the department and you are simply not -- you just don't have the potential to be drawn in to the department politics or expectations of the officers as much. In addition, detectives, one of the problems was that most of the supervisors in Internal Affairs were sergeants -- or investigators were sergeants, they did not necessarily have any real significant investigative experience; some did, some did not. The detectives coming in who actually have significant
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
196
that supported the complainant's version that did not support the officer's. And in those cases, when the officer's version was accepted, that was problematic. Q This happened in the Denver Diner cases, did it not? MR. RICE: May I -- I'm not sure I understand the question. Are you asking for his evaluation of the case -A That seems -MR. RICE: -- and whether or not something happened in that particular case based on his analysis, then I think it is subject to the privilege. MR. MOHAMEDBHAI: I'm talking about the facts of the Denver Diner case. MR. RICE: No, I know, but that's not what you asked him. MR. MOHAMEDBHAI: Sure. MR. RICE: You asked him what happened in the case, and "that" being this phenomena you are speaking to. Q (BY MR. MOHAMEDBHAI) Based on the facts of the Denver Diner case, the officers' versions in their written reports of what happened didn't make much sense, did it, as compared to what you observed on the video?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RICE: Now, that, I'll object to as that's asking for his analysis of this given case. MR. REYNOLDS: I'm going to object to form also. Q (BY MR. MOHAMEDBHAI) Did you ever make the recommendation -- strike that. Did the Office of the Independent Monitor ever make the recommendation to the Denver Police Department that they should hire contract former investigators or detectives to conduct its IAB investigations? MR. RICE: I think you're asking now for his advice that he gave to the department. And unless it's subject to a public report, I think it's subject to the privilege. A Yeah, and I did not -- that was not something that I publicly reported on. Q (BY MR. MOHAMEDBHAI) Did you privately recommend to DPD that they should hire contract detectives and retired investigators to fulfill the roles of IAB investigators? MR. RICE: Object on the basis of privilege. Q (BY MR. MOHAMEDBHAI) The system in Portland, as you described, was the use of outsiders, for a better use of the word, that you used retired
199
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in Internal Affairs. If, however, you end up with a culture where they are not learning and they are not progressing and they are conducting inadequate investigations, then a better practice at that point would be to bring in the outsiders. Sometimes even doing a mix and match could potentially be better. One of the things I've learned in oversight and working with so many departments is there is no one best practice, that you have to evaluate how the departments -- you have to evaluate the culture and the accountability of that department, and then act accordingly. So it's not always the best practice to bring in retired investigators or detectives; it certainly can be in appropriate circumstances. It's not the best practice to necessarily conduct independent investigations, like they do in New York, San Francisco, Chicago, but it can be, depending on whether or not the department is capable of conducting adequate investigations and adequately police itself with monitoring or whatever other tools you give them to succeed in that endeavor. Q (BY MR. MOHAMEDBHAI) As one of your functions as the Office of the Independent Monitor, was
198
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 detectives and investigators in order to perform IAB investigations, correct? A Correct. Q Is using -- strike that. Based on your experience as the Independent Monitor for the City and County of Denver, and your career in public safety and law enforcement, is it a more effective system to use outsiders who are retired detectives and investigators to perform the functions of IAB? MR. RICE: Object as asked and answered. Go ahead. A Okay. It can be. The issue, again, it goes to the culture of the department and its ability to police itself. One of the issues is that there are benefits to having insiders do the investigations, meaning active sergeants. The benefits include that they learn the value of accountability, that they learn about the bad things that do happen and bad decisions officers really make, that they then take it out and, in the future, they are better supervisors. It also gives an opportunity for promotion to a lieutenant of individuals who have that background and experience. So there are benefits to having current officers work
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
200
it your job to recommend best practices that were tailored to the culture and needs of the Denver Police Department? A Yes. Q Was there defensiveness or resistance to the recommendations you made as the Independent Monitor concerning the best practices for the Denver Police Department? MR. RICE: I think now you are getting into the discussions he had with the department, the recommendations he made and, therefore, are part of the deliberative process. Object on that basis. Q (BY MR. MOHAMEDBHAI) Did you make private recommendations to Denver officials that would reduce excessive force, officer dishonesty, and biased investigations beyond those in your public reports that Denver did not institute? MR. RICE: Let me think about this for a second. Yeah, I think you can answer that question. A Okay. Yes. Q (BY MR. MOHAMEDBHAI) What were those private recommendations that you made to Denver officials that would reduce excessive force, officer dishonesty, and biased investigations beyond those in your public reports that Denver did not institute?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RICE: Okay. Now I object on the basis of that gets into the substance of his recommendations and advice and, therefore, is a part of the deliberative process. Q, is this a good time to take a break for a few minutes? MR. MOHAMEDBHAI: Yes, sir. MR. RICE: Thank you. THE VIDEOGRAPHER: We're off the record at 3:05. (Recess taken from 3:05 p.m. to 3:16 p.m.) THE VIDEOGRAPHER: We're back on the record at 3:16. Q (BY MR. MOHAMEDBHAI) Mr. Rosenthal, could you review Paragraph 3, found on COB-9 in Exhibit 67, please. A (Deponent examines document.) Got it. Q The Citizen Oversight Board discusses this issue of officers being labeled as a rat by other officers and ostracized for reporting misconduct, as found on COB-9, Paragraph 3, on Exhibit 67. Do you see that? A Yes. Q Did you observe this type of culture of fearful of being labeled as a rat and ostracization by
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
203
can't prove it, but my take on it was that there were corrupt activities going on, theft, that officers would report that type of conduct. Q (BY MR. MOHAMEDBHAI) The COB notes, quote, "In two significant inappropriate force cases that were captured on video, the Office of the Independent Monitor noted that the chain-of-command failed to adequately address the subject officers' use of" force -- "use of inappropriate force and, instead, sought to justify the involved officers' conduct." Do you see that? A Yes. Q Were one of those two cases that involved a video, as discussed by the Citizen Oversight Board, the Denver Diner case? MR. RICE: Let me think about this for a second. The trouble I'm having, Q, just so you understand why I'm laboring over this, is they are talking about what the Office of the Independent Monitor noted, but there is no reference to what it is that they are calling upon for that. And so I don't know whether it calls out a public report or not. MR. MOHAMEDBHAI: But this is a public report. MR. RICE: This is indeed, but I don't even
202
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 other officers for reporting misconduct while you were the Independent Monitor for the City and County of Denver? A I am certainly aware of this case that's referred to in here, and the other -- it refers in the first paragraph to three separate cases, and I'm certainly aware of all three of those cases. I mean, I'm also aware of cases where officers did come forward. Q How would you describe the culture of the Denver Police Department in its code of silence regarding officer misconduct? MR. RICE: I would object as asked and answered, but go ahead. A Okay. And my take on it is certainly with respect to discourtesy, I felt very strongly that a Denver police officer would not report on another Denver police officer for an act of discourtesy. I felt for acts of force that while there was some cases where officers would report another officer for inappropriate force, there were also cases where we established officers would not. I did find that in cases such as sexual assault or what have you, that officers would report other officers for acts of that sort. And, again, I
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
204
know what this references back to, is the issue. THE DEPONENT: Well, it would reference back to information received from my office, confidential information. MR. RICE: Right. Okay. See, so that's the problem I've got. So on that basis, I would object to the question as calling into question privileged information. MR. MOHAMEDBHAI: Even though the Citizen Oversight Board publicly released information concerning the OIM's recommendations in a public report, you are still asserting deliberative process privilege? MR. RICE: As to a specific case, yes. You can ask him anything you want about what's in this report. MR. MOHAMEDBHAI: I'm trying to. MR. RICE: And the conclusions -- no, you've asked to go outside of it. Because the report that you are referring to doesn't identify cases. MR. MOHAMEDBHAI: So are you going invoke -MR. RICE: Yes, I think I just did. Q (BY MR. MOHAMEDBHAI) The COB mentions that not a single officer came forward to confirm unnecessary force was used, even though there were

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 multiple officers present at the time of each incident. Do you see that? A Yes. Q Was that observation related to the Denver Diner incident? MR. RICE: Same objection, and I also object on the basis of foundation. I don't know that you even established that he would even know that. This is a statement made by the COB, not him. Q (BY MR. MOHAMEDBHAI) Did you ever make recommendations to Denver concerning the Denver Diner incident regarding officers' failures to report Officers Nixon and Devine's use of force? MR. RICE: Object on the basis of deliberative process privilege. It goes to his recommendations on a specific case. Q (BY MR. MOHAMEDBHAI) Mr. Rosenthal, I'm going to show you Time Index 1:49:25 through 1:49:33 of the Denver Diner video. (Portion of video played.) Q (BY MR. MOHAMEDBHAI) Mr. Rosenthal, have you had a chance to review Time Index 1:49:25 through 1:49:33 of the Denver Diner video? A Right this second, yes, although it went fairly quickly and it's a little difficult out of
207
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Affairs case. I don't think so. I don't recall any use-of-force report other than that provided by Officers Nixon and Devine, but I can't -- I'm not positive on that. And, again, let me point out, it's been -- I can't even remember -- well, Charley Garcia imposed discipline back in the summer of, what was that, 2011. MR. REYNOLDS: April. A April of 2011, you're right. So I have not looked at this or read the case or done anything since that time. So my memory is not going to be totally fresh on the contents of the file. Q (BY MR. MOHAMEDBHAI) Based on your -- strike that. What documents did you review in preparation for your deposition today? A I didn't review any documents. Q During your time as the Independent Monitor for the City and County of Denver, did officers ever justify their failure to report other officers' use of force due to the written policies of the City and County of Denver? A Yes. Q Were there problems with the written policies of the City and County of Denver that would
206
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 context of the entirety of the incident, and it's been quite a while since I've watched the entirety of the video. MR. RICE: Okay. So I think the only question was, did he show it to you? THE DEPONENT: The answer to that is yes. Q (BY MR. MOHAMEDBHAI) Would you like to review the entire Denver Diner video? A I guess it depends on what you're going to ask me. Q I'll play this time index again for you. (Portion of video played.) Q (BY MR. MOHAMEDBHAI) Mr. Rosenthal, have you had a chance to review Time Index 1:49:25 through 1:49:33 of the Denver Diner video? A Yes. Q Prior to the Internal Affairs investigation, did any Denver police officers report the use of force, as observed by Officer Ricky Nixon? A To report the use of force or report it as inappropriate? Q Just the use of force. MR. REYNOLDS: Object to form. A So did any other officer report the use of force? Again, my basis of knowledge is the Internal
208
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 lend itself to allow officers to fail to report other officers' use of force, inappropriate or otherwise? A Well, the policy did require an officer to report -- a witness officer to report an inappropriate use of force. So the policy was there for that. There was not a policy requiring an officer to report an appropriate use of force unless that officer were involved in the use of force. That is contrary to the sheriff's departments, which required officers to report any use of force that they observed. It was not -- one of the issues and concerns would be the amount of paperwork that you would require if you required every officer who witnessed any use of force to write a report, as well as the officers involved. So I can't say that it's necessarily a best practice one way or the other. Again, it depends on the nature of the department and its needs. Q No officers reported Officer Nixon's use of force, as found in the Denver Diner incident, prior to the Internal Affairs Bureau investigation, correct? A That's my understanding. MR. RICE: And object as asked and answered. Q (BY MR. MOHAMEDBHAI) Numerous officers witnessed Officer Nixon's use of force on Ms. Ana Ortega and Kristal Carrillo, correct?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, that's -- the question -- that's the question. Can you establish that any officer actually saw enough to know that it was inappropriate, and, you know, that's -- I don't know that I can go into my thought process on that one way or another, but it's -I think I just answered. I'm not sure whether you need more or what I need to state again. Q Based upon the HALO video, several officers were looking directly at Officer Nixon when he engaged in inappropriate force against Ms. Kristal Carrillo and Ms. Ana Ortega, correct? MR. RICE: Now you are asking for his analysis of the video as opposed to facts, okay. You're asking him what's his analysis of whether people saw it, and I think that now you are intruding on the privilege. MR. REYNOLDS: I'm going to object to form. It's argumentative. The video speaks for itself. Q (BY MR. MOHAMEDBHAI) Based on your experiences as the Independent Monitor and your career in public safety and law enforcement, it is highly inappropriate to strike a restrained prisoner in the face, correct? A In most circumstances, it would take a -you would have to come up with a legitimate reason to
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
211
matter is that you haven't established that because I would have objected to it. But beyond that, then you're asking for his analysis of why that would be appropriate, and that's exactly the sort of thing that the deliberative process privilege goes to, his reasoning, his recommendations, and his consultation. Q (BY MR. MOHAMEDBHAI) Did the Office of the Independent Monitor request another review of the Denver Diner incident? MR. RICE: Same objection, same assertion of privilege. Q (BY MR. MOHAMEDBHAI) Could you review Paragraph 4, found on COB-9 of Exhibit 67. A (Deponent examines document.) Done. Q Citizen Oversight Board attributes to you that you have observed, "Attempted to dissuade complainants" -- strike that. The COB attributes to you concerning the citizen intake process, the complaints, that you noted that Internal Affairs sergeants "attempted to dissuade complainants from filing complaints." Do you see that? A Yes. Q Did you observe a pattern of Internal Affairs sergeants from attempting to dissuade citizens from filing complaints against the Denver Police
210
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do so. In general, that would not be something that would be appropriate. Q Was there anything, based on your monitoring of the investigation of the Denver Diner incident, which would have justified Officer Nixon's use of force when he punched Kristal Carrillo in the face while she was restrained in handcuffs? MR. RICE: Now you are asking for his analysis of the specific case and you are intruding on the privilege, so I assert the privilege and instruct not to answer. Q (BY MR. MOHAMEDBHAI) Did you make any recommendations to Internal Affairs prior to Chief Quinones's review of the matter -- strike that. Why did the Office of the Independent Monitor recommend that -- to Chief Whitman that another review of the Denver Diner incident should occur? MR. RICE: Wait a second. You are presupposing such a recommendation was made, all right. And I don't think you've established that because that would intrude on the privilege. So I'm objecting on that basis. MR. MOHAMEDBHAI: So you are objecting to foundation? MR. RICE: Well, no. But the fact of the
212
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Department and its officers? A I don't think that I could say it was a pattern. I think I saw it in a number of cases, but saying it was a pattern, I think, would be overstating it. Q Did you observe a pattern of Internal Affairs sergeants arguing with citizens who would file complaints against the Denver Police Department? A At the same time, I couldn't say that we saw a pattern, but had certainly seen it happen. Q What patterns did you observe, while you were the Independent Monitor, concerning the failures of the Internal Affairs Bureau in the complaint intake process? A And, again, the use of the word "patterns" becomes difficult. What I did see were -- I had concerns -- a number of cases were brought to my attention where I had concerns about how the intake was proceeding, and we had a number of other cases where people came to our office to file complaints. We would take their complaint, but previously, Internal Affairs would not. So those -- I'm trying to think. And most of those cases did not involve the cases where I felt that there was really, you know, significant conduct

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 such that a legitimate filed complaint was being turned down, but the conduct was such that it raised concerns about the quality and the training of the Internal Affairs personnel in accepting complaints and their apparent lack of understanding of their role and responsibilities. Q Was the Alexander Landau matter a legitimate complaint to the Internal Affairs Bureau? MR. RICE: Object. That calls for his analysis of a specific case, and so I object on the basis of privilege. Q (BY MR. MOHAMEDBHAI) Did you have concerns about the failure of the Internal Affairs Bureau to originally receive the Alexander Landau Internal Affairs Bureau complaint? MR. RICE: Same objection, assertion of privilege. Q (BY MR. MOHAMEDBHAI) Did you see a pattern of the Denver Police Department to generally discourage citizens from making citizen complaints concerning officers' use of force or dishonesty? A No, to that, I would say no. Q I would like to turn your attention to Paragraph 8 on COB 10 of Exhibit 67. During your time as the Independent Monitor for the City and County of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
215
break. I'm going to ask you to review 2-18, 2-19, and 2-20 of Exhibit 68. It's the final report. I'm going to ask you some questions about that, and then I'm -A And which -- what pages again? Q 2-18, 2-19, and 2-20. MR. RICE: Is this the annual report? A Yes, this is the most current annual report? MR. RICE: The 2011 annual report? A So this was issued after I left. Go ahead. Q (BY MR. MOHAMEDBHAI) So I'm just -- I'll give you a chance to review it. I would just like to use the restroom real quick. A I mean, I'm familiar with them, if you -Q Okay. Well, let's take a quick break. THE VIDEOGRAPHER: We're off the record at 3:43. (Recess taken from 3:43 p.m. to 3:47 p.m.) THE VIDEOGRAPHER: We're back on the record at 3:47. Q (BY MR. MOHAMEDBHAI) Mr. Rosenthal, I would like to ask you some questions about this report as it relates to timeliness and -- of the investigations and just sort of an understanding of what goes into these reviews and opinions, okay. A All right. Just know that this report was
214
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Denver, did you have concerns that officers would be allowed to remain on the streets making arrests and testifying in court while they were being investigated for commissions of a deceptive act or inappropriate force? A Yes. Q While you were the Independent Monitor for the City and County of Denver, did you note instances where officers, who engaged in repeat constitutional violations, were not removed from the street even though they were being investigated for inappropriate force or dishonesty? THE DEPONENT: I'm going to have to ask you to read that one back. (The last question was read back.) A The term "repeat," repeated is what I'm getting hung up on. And then the term "instances," so the problem is you're giving me -- it's not something that was common, but it is something that I was concerned about in maybe two instances, in particular. Q (BY MR. MOHAMEDBHAI) Which instances were those? MR. RICE: Object on the basis of privilege as to specific cases. Q (BY MR. MOHAMEDBHAI) We can take a quick
216
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not written by me. Q I understand. What are the performance goals for closing citizen internal complaints? A And these are performance goals that have been created by the Monitor's office, in consultation with the Denver Police Department, but as Chief Whitman would publicly say, were not necessarily binding on the department, but they knew that we would be using these goals to evaluate the performance of publicly reporting on them. The goal to complete for all citizen internal complaints was to complete 95 percent of all complaints within 150 days. Q And how was that 150-day performance goal created? A It was in consultation with Internal Affairs command staff, and we -- what we attempted to do was determine that based upon appropriate staffing, and given the nature of the cases, what would a realistic goal be, but that would also be one that would serve the needs of the department and the community. Q Are there national standards for which Internal Affairs Bureaus are supposed to complete an investigation of a citizen complaint? A No. Q Can you explain the difference between the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IAB formal investigation, the command review, and the chief's hearing. A Once a case is assigned for full investigation, from the date of the assignment to the date that the investigation is complete, which is generally the date that it is approved by the OIM and the commander of Internal Affairs and therefore then goes out for command review, that would be the timeline for investigations -- actually, let me take that back. It might be from the -- I think the start date is the date that the investigation was reported to Internal Affairs. And then the end date is the date that it basically is ready to and goes out for command review. The investigation is where the sergeant and Internal Affairs is compiling all the information necessary, such that the information is compiled and documented and it can be ready for the officer's command staff to review the investigation and determine the findings. The command review is that period of time from which the case is sent out from Internal Affairs to the district or the bureau and the amount of time it then takes for the command review process to be completed through the division chief returning the case to Internal Affairs.
219
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Mm-hmm. Q -- before he makes -- he has the chief's hearing and makes his written decision, all right. Does that -- does the time it takes for the IAB formal investigation and the command review and the chief's hearing, is that all part of the 150 days? A No, what you are missing is that for all citizen internal complaints, that includes a significant majority of complaints that are declined, that are handled as informals, they are handled as mediations, and the informal investigations, only a small subset of all those complaints. In addition, those cases where discipline is imposed where you are going to have a chief's hearing is another small subset of the formals, so it's a pyramid. All cases are here (indicating). Those cases that get investigations are here (indicating), those cases that get sustained findings are here, you know, and discipline. So it's -- the significant majority of citizen complaints are declined, are handled informally or mediated, not formally investigated. Q So what's the goal for the amount of time it should take to do a formal investigation that involves excessive force and potential discipline and --
218
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 When we had a disciplinary review board, you then had a discipline review board between the time that the findings were returned by the division chief, and then you would have the discipline review board recommendations and then you would have the chief's hearing. Once we got rid of the disciplinary review board, it went straight from the date that the division chief made their findings to the date of the chief's hearing, where the chief brings in the officer and gives an officer the opportunity to explain any mitigation or any reasons why the case should not be sustained. That's a constitutionally required hearing. At the conclusion of the chief's hearing, the chief makes recommendations to the manager of safety, and the manager of safety has 15 days in which to impose discipline or obtain a waiver from the officer for -- to obtain more time to impose discipline. Q All right. Let me show you -- let me tell you what my confusion is about the 150 days and that -I'll just cut to it so that maybe you can explain this to me, is in the timeliness of the chief's hearing, for instance, in 2010, it says it takes an average of 100 days to go from the division chief to the chief, okay --
220
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, what we do is -- the problem is if you take it -- as you can tell, if you -- we do the big subset, 95 percent within 150 days understanding that there is 5 percent that are not going to make that 150 days, at least 5 percent. Then you get to investigations. Our goal is if it is subject to a full investigation, to complete 95 percent of full investigations within 150 days. And then when we talk about -- we talk about command reviews, if you've got a full investigation, you'll have a command review. But then in only the sustained cases will you have a chief's hearing. So this was -- these goals were created specifically as they related to the processes of the Denver Police Department. Other departments have different processes, unless these goals would not necessarily apply to another municipality. Q Could you turn your attention to Exhibit 60. A All right. Q Just for the record, Ana Perez is now Ana Ortega, as related -- as referred to in this lawsuit. So I'm showing you what's been marked as Exhibit 60, which is Denver.Ortega 4755 through 4760. What are these documents? A These are the cover letters that we send out

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to -- in any case involving a citizen complaint. And these were the cover letters sent out to the complainants in the Denver Diner case, which were attached to the department's letter to them advising them of the results of their investigation. And I have to say, that's the process that we always use. I'm always sure we did. There was a letter from the department to the complainants. It's not here. If there was, it was a pretty minimal letter and it took a while to get, although I could be wrong, and maybe this was the stand-alone letter, but the process was that I would use this as a cover letter to any department correspondence advising the complainants of the disposition of the case. Q Why is the Independent Monitor apologizing for the length of time it took to complete the case as it related to the investigations of the Denver Diner incident? A Because the department didn't, so I did. You know, no, I could not control that, but it's certainly something that I was embarrassed for the City about. Q It says here that "Please be assured that upon receiving the case, the manager of safety acted in a timely fashion to resolve the case appropriately."
223
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gave formal notice in early December of 2011. Q And informal notice as far back as November? A Correct. Q So the City and County of Denver has been on notice, at least informally, for five months now, six months? A I'm not sure that's fair in the sense that the informal notice was simply that I was being -- I was a finalist for a position and that I was seriously considering taking it. So I'm not sure that's enough to put them on notice that I was truly going to leave. But certainly December, early December, when the premier announced that I was taking the job as the chief civilian director with the independent investigations office, obviously, at that point, the department -- the City was clearly on notice that I was leaving. Q Well, how long did it take you to be ultimately interviewed and then appointed to be Denver's first Independent Monitor? A That takes me a long way back. I think, if I recall, that it was in December of 2004 that I was first shown the application or the recruitment, and that I indicated -- I withdrew from being on the committee, and then I believe I was hired or named as
222
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Do you see that? A Yes. Q I mean, the tone and tenor of the letters in Exhibit 60 are that you are apologizing for the various processes in the investigation of the Denver Diner cases, correct? A I suppose that's fair, yeah. Q Is this public relations role a function of the Independent Monitor? A I think it is. I think it should be. You know, the complainants should know that there is at least somebody in government who cares about how long it takes and is doing whatever they can to improve that in the future. Q Who is the current Independent Monitor for the City and County of Denver? A There is no current Independent Monitor. Gregg Crittenden is the acting Independent Monitor. Q Are there any rules and regulations based -from the City and County of Denver concerning how long there should be a void for the Independent Monitor? A No. Q You left the Independent Monitor's office in January of 2012? A I resigned effective January 8th of 2012. I
224
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hired in April. So I mean, I can't remember when I was then confirmed by council, but then I started in July, because I had to finish things up in Portland. Q So approximately four months from interview to selection and then a few more months for confirmation? A Yeah, it was something like that. It was -because I had an interview with the panel, then I had interviews with -- was one of the three finalists for interviews with all the groups, and I think that included the mayor. And then I was notified of the appointment and confirmed by counsel. So I -- probably about four months. Q Are you aware of the current committee that has been established by the City and County of Denver to search for the next Independent Monitor? A Yes. Q Are you concerned about the makeup of that committee as it relates to finding a new Independent Monitor? A Yes. Q What is your concerns about the current committee that's been established by the Hancock administration to find the next Independent Monitor? A I'm not sure. Is that a compellable

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opinion? MR. RICE: It's not. You don't have to give your opinions. A You know -Q (BY MR. MOHAMEDBHAI) I'm not trying -- I'm not trying to intrude into something that -- so I respect if you don't want to, just let me know. A Yeah, that's a personal opinion that I don't -- unless I'm compelled to do so, I will not share. Q I could compel you, but I don't want to. MR. RICE: I don't think you can compel anybody to give an opinion, but that's just my -MR. MOHAMEDBHAI: I can call the magistrate judge, but -MR. RICE: You could, but you can't compel somebody to give an opinion. You can make him ask for facts and make him respond to things he has personal knowledge of, but nobody is compelled to give opinions. If you can show me some authority to the contrary, I'll look at it. MR. MOHAMEDBHAI: Okay. Q (BY MR. MOHAMEDBHAI) Now, you advised the plaintiffs in the Denver Diner case in Exhibit 60 that, quote, "The Monitor's" act -- "the Monitor's office 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
227
I have to say, I did go so far as to also state that I believe the manager's decision on the case was reasonable and appropriate and based upon the facts of the case. Q (BY MR. MOHAMEDBHAI) So what facts did you use to support that statement that the manager of safety's decision in the Denver Diner case was reasonable and appropriate? MR. RICE: I think he can answer what facts he relied on or he knew of in the case, but to get into the analysis of the facts I think is inappropriate, and I'll object to it on the basis of privilege. MR. MOHAMEDBHAI: Okay. Q (BY MR. MOHAMEDBHAI) So what facts did you rely on when you made the statement that the Monitor's office believes that the manager of safety's decision in the Denver Diner case was reasonable and in -- and appropriate? A I relied on everything that I looked at in the Internal Affairs file. I relied on the video, the officers' reports, the officers' interviews, the physical evidence, the radio calls, all of the factors that were collected during the Internal Affairs investigation, I relied upon to reach this conclusion. Q What facts in particular stood out as
226
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 actively monitored the investigation and made recommendations regarding the command findings? A Correct. Q Do you see that? A Mm-hmm, yes. Q Now, you understand that I am the attorney for the plaintiffs in the Denver Diner case, correct? A Yes. Q What recommendations did you make concerning the Denver Diner incident and the command findings? MR. RICE: That's getting into the deliberative process privilege and object on the basis of privilege. Q (BY MR. MOHAMEDBHAI) So you get to tell the plaintiffs in the Denver Diner case -- strike that. You informed the plaintiffs in the Denver Diner case that you made recommendations concerning the investigation, but Denver is preventing you from actually saying what those recommendations are? MR. RICE: Denver is not preventing anything. Denver is asserting privilege. A I advised them of the process, but no, I've never been -- I've never advised anyone of my recommendations because the ordinance does not allow me to do so.
228
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 being -A It seems like it's the same. MR. RICE: We've been through this before. It's the same objection, the same question that was asked before. It intrudes on the deliberative process privilege, and so therefore, I object and instruct not to answer. Q (BY MR. MOHAMEDBHAI) Did the Independent Monitor's office receive any backlash concerning the Denver Diner case? A Backlash, I mean, I would say that we certainly received a backlash from the union relating to all of the -- there were a number of cases which involved terminations of officers during this period of time by Manager Garcia. So there certainly was a backlash against the manager and the Monitor's office as well, certainly as it related to the union. Q Do you understand what a Garrity advisement is? A Yes. Q What is a Garrity advisement? A A Garrity advisement is the order by which a department is able to compel an officer to provide a statement so they are, in essence, ordered to give up their Fifth Amendment right to remain silent. They

***CONTAINS CONFIDENTIAL TESTIMONY*** AGREN BLANDO COURT REPORTING & VIDEO INC 229 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't have to give up that right, but if they fail to do so, they can be terminated. So officers have a privacy -- or not privacy, a property (sic) interest in their jobs, as many governmental officials do. And as such, when the department orders the officer to cooperate in an Internal Affairs investigation, nothing the officer says can be used against that officer in criminal court. So it can only be used, in essence, in the disciplinary action. Q Is it potentially problematic or a conflict for an Internal Affairs officer to simultaneously be conducting the criminal investigation into officers? A It can be problematic. It depends on how it's done. There are larger agencies which will actually have separate internal criminal investigations bureaus, separate and apart from their Internal Affairs Bureaus. Those are the ones generally with huge resources, thousands of officers in their department and significant resources that they can give to that. In the smaller, medium-sized urban environments such as Denver, it's more traditional to have Internal Affairs conduct the criminal investigations. What they do, however, is they basically do everything except for ordering the officer 230
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to comply. So as long as they are not ordering an officer to provide Garrity as part of the criminal investigation, it generally -- it works. It can work just fine. Once an officer has been given -- has given Garrity information, however, then that Internal Affairs officer or sergeant is dirtied up with the compelled statement and could not -- and potentially could not go forward with any criminal prosecution. So it's just a matter of making sure that the process is such that they are -- it's very clear they are conducting a criminal investigation. And any statement they take from a subject officer, that that officer where -- is a voluntary statement and can be used against them in court. Q So if an officer is assigned the dual task of performing the administrative investigation and investigation into potential criminal conduct, it sounds like the optimal process is to have the criminal investigation go first? A Correct. Q Is the Independent Monitor's office involved in any way with the monitoring of the criminal prosecution of Denver police officers? A Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
231
Q Can you explain to me what monitoring the Independent Monitor's office does concerning the criminal investigations and prosecutions into Denver's law enforcement? A It's a little more limited than the -- with respect to the Internal Affairs portion, we have full authority and involvement. On the criminal side, usually, it's the district attorney who is really the lead person who does most of the work. So we would not sit in and listen to or meet with the district attorney. That would be the job of Internal Affairs. Once the district attorney had reached the conclusion that no criminal charges would be filed, at that point, we would then conduct the further Internal Affairs investigation, but it's a little -- I'm not explaining it very well. We would be notified of the case at the beginning even though it was a criminal investigation. We would have the ability to monitor the interviews and the investigation through the criminal investigation, but the decision-making process would be that -- would be between the department and the district attorney. Once the district attorney says we're not going to file, then we continue on and we -- there is no one else involved.
232
Q Did that follow-up investigation post a district attorney declining to prosecute occur in the Denver Diner case? A You know, this was assigned to Senior Deputy Monitor Gregg Crittenden, and so I do not recall. I mean, I would assume that in this case, the district attorney, that there was a decline. That's the way the normal process works. I'm trying to remember. I don't have the distinct recollection of discussing this one with the district attorney's office. You know, Gregg Crittenden would be in the better position to be able to answer that. Q Based on your observations and experience as an Independent Monitor for the City and County of Denver, was there a practice by the district attorney's office to decline the criminal prosecution of Denver's law enforcement? A No. That's not to say I necessarily agreed with every decision the DA made, but the DA did file charges in a certain number of cases. Q Does the Independent Monitor's office discuss cases with the district attorney's office before deciding -- strike that. Does the Independent Monitor's office discuss cases with the DA's office before a decision is

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made as to whether or not a prosecution is going to occur? A Sometimes. Q Did that occur in the Denver Diner case? A That, I don't recall. Q So were you personally involved in any discussions with the district attorney's office concerning Officers Nixon or Devine? A I do not have a memory of that. Yeah, I don't know. I could have -- I don't know if Gregg was involved in it potentially in discussing it with the DA's office. I don't have memory of discussing it. There is a specific DA who handles these cases. I do not have a current recollection of having a discussion with him about the case. So the answer -- I don't know. I might have, I might not have, I just don't remember. MR. MOHAMEDBHAI: If I can have a few moments, I might be done. THE VIDEOGRAPHER: We're off the record at 4:16. (Recess taken from 4:16 p.m. to 4:18 p.m.) THE VIDEOGRAPHER: We're back on the record at 4:18. MR. MOHAMEDBHAI: We have no further
235 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 particular matter. And what I would like to do is we'll make a copy of this and then mark it. What is the next exhibit in sequence? THE COURT REPORTER: Seventy-six. MR. RICE: Okay. So it will be marked as Exhibit 76. The other record that I wanted to make was that we -- everyone has been aware that Mr. Rosenthal has a plane that he needs to catch to return to his place of residence now in British Columbia. And I have a number of questions to ask that are going to take a significant amount of time. And so what I've agreed is that we will continue this deposition to be reconvened by videoconference with Mr. Rosenthal then not having to return, but still serving the function of taking his deposition. And that will be rescheduled upon mutual agreement of the witness and the parties to the litigation. And I think that Mr. Reynolds as well has questions and intends to take them up in that same fashion. And, of course, you know, as with all deposition procedure, you guys are fully capable, then, of asking questions with regard to anything that we might raise during our examinations. So that's all I 236
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 had to say. Q (BY MR. MOHAMEDBHAI) Mr. Rosenthal, are you going to agree to voluntarily continue this deposition? A I'll agree to voluntarily continue the deposition by video with me being -- doing this from Vancouver. As far as the subpoena is concerned, I will be conferring with the city attorney's office and -- to see if there is any possibility of quashing it, as I do not think, as I've made myself available to be here today for six hours of deposition, I've agreed to make myself available in Vancouver by video for however long it takes, and I believe that any further requirements given my current residence are extreme and unnecessary. Q Would you voluntarily make yourself available to trial -- to testify at trial? A No. Q So absent a subpoena, would you testify at trial as it relates to the Denver Diner case? A Probably not. I would expect, however, that given me being a resident of British Columbia, that you have the ability to issue a subpoena and to follow normal process and protocol to get a resident of British Columbia to come and testify appropriately. And obviously, I would follow with any, you know, court-required order or any lawful order of the court.
234
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. MR. RICE: Okay. Before we took our break, right before 4 o'clock, there was no record made on what occurred after that break because we were off video and, therefore, not on the record, but counsel invited Mr. Rosenthal during that last break to step out and go to the back patio of the office. And I had observed immediately before that occurring that a gentleman had come through the office and went back into that area. Mr. Rosenthal -MR. MOHAMEDBHAI: That's inaccurate. MR. RICE: Let me make my record. You can make whatever you want. Mr. Rosenthal said he would rather just stay in the deposition room and he stayed here during the break. Then also during the break, counsel came in and said that they wanted to serve Mr. Rosenthal with a subpoena. The gentleman who I had seen walk through the office earlier came in, a Mr. Staub, who apparently is an employee of the Killmer, Lane & Newman law firm, serve Mr. Rosenthal with a subpoena to appear at the pretrial conference in this matter scheduled for September 13, 2012, at the hour of 9:15 a.m., and then Mr. Staub came in and served the subpoena. And that's the record I wanted to make with regard to that

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RICE: Okay. Anybody else, anything else you want to say? MR. MOHAMEDBHAI: There was no service processor here when we broke. MR. RICE: I saw that gentleman walk through right before you guys took that break. I saw him go back into the kitchen. MR. RATHOD: At the time I made the statement, offer to Mr. Rosenthal to step outside and have -- go outside the back deck, Mr. Staub was not here at that time. I offered it as a courtesy to him because we were taking a break. Mr. Staub wasn't here at that time. It was the subsequent break that we took to serve Mr. Rosenthal. MR. RICE: You are not facing that direction. I'm facing that direction through the glass here. That gentleman who served him with the subpoena walked through here before we took our break. MR. MOHAMEDBHAI: We disagree. MR. RATHOD: But the statement was made at the previous break, not at that break. MR. RICE: I don't think so, but whatever. We've made our respective records and we'll move on. Anybody else got anything else they want to say? I guess we're closed.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 Address: _______________________________ 15 _______________________________ 16 17 18 19 20 21 22 23 24 25 My commission expires: _________________ Seal: ( ) No amendments ( ) Amendments attached Subscribed and sworn to before me this _______________ day of __________________, 2012. Notary Public: _________________________ I, RICHARD ROSENTHAL, do hereby certify that I have read the foregoing transcript and that the same and accompanying amendment sheets, if any, constitute a true and complete record of my testimony. _____________________________ Richard Rosenthal
239
LPR
238
240
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF COLORADO ) )ss. REPORTER'S CERTIFICATE COUNTY OF ) I, Lisa Persichitte Reed, do hereby certify that I am a Certified Realtime Reporter and Notary Public within the State of Colorado; that previous to the commencement of the examination, the deponent was duly sworn to testify to the truth. I further certify that this deposition was taken in shorthand by me at the time and place herein set forth, that it was thereafter reduced to typewritten form, and that the foregoing constitutes a true and correct transcript. I further certify that I am not related to, employed by, nor of counsel for any of the parties or attorneys herein, nor otherwise interested in the result of the within action. In witness whereof, I have affixed my signature and seal this 17th day of April, 2012. My commission expires April 15, 2016. ______________________________ Lisa Persichitte Reed Certified Realtime Reporter
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
THE VIDEOGRAPHER: This concludes the deposition. We're off the record at 4:23. (The deposition concluded at 4:23 p.m., April 9, 2012.) (Exhibit 76 marked after the conclusion of the deposition.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 _XXX_ WITHIN 30 DAYS OF THE DATE OF THIS LETTER 18 _____ By ___________ due to a trial date of ___________ 19 20 21 22 AGREN BLANDO COURT REPORTING & VIDEO, INC. 23 cc: All Counsel 24 25 Please be sure the original signature page and amendment sheets, if any, are SIGNED BEFORE A NOTARY PUBLIC and returned to Agren Blando for filing with the original deposition. A copy of these changes should also be forwarded to counsel of record. Thank you. _____ Read the enclosed copy of the deposition and sign the signature page and amendment sheets, if applicable; the signature page is attached. _XXX_ Have the deponent read your copy and sign the signature page and amendment sheets, if applicable; the signature page is attached. Re: Videotaped Deposition of RICHARD ROSENTHAL VOLUME I Ortega, et al. v. City and County of Denver, et al. 11-cv-2394-WJM-CBS The aforementioned deposition is ready for reading and signing. Please attend to this matter by following the items indicated below: _____ Call 303-296-0017 and arrange with us to read and sign the deposition in our office. AGREN BLANDO COURT REPORTING & VIDEO, INC. 216 - 16th Street, Suite 650 Denver, Colorado 80202 4450 Arapahoe Avenue, Suite 100 Boulder, Colorado 80303 April 17, 2012 Thomas S. Rice, Esq. Senter Goldfarb & Rice, LLC 1700 Broadway, Suite 1700 Denver, Colorado 80290
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
AMENDMENT SHEET Videotaped Deposition of RICHARD ROSENTHAL VOLUME I April 9, 2012 Ortega, et al. v. City and County of Denver, et al. 11-cv-2394-WJM-CBS The deponent wishes to make the following changes in the testimony as originally given: Page Line Should Read Reason _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ _____ _____ ______________________________ _______ Signature of deponent: ________________________________ Subscribed and sworn to before me this ______ day of __________________, 20____. (SEAL) Notary's signature _____________________ Notary's address _____________________ _____________________ My commission expires __________________
242
1 2 3 4 5 6 7 8 9 _____ Signature waived. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _XXX_ Unsigned; original amendment sheets and/or signature pages should be forwarded to Agren Blando to be filed in the envelope attached to the sealed original. Thank you. AGREN BLANDO COURT REPORTING & VIDEO, INC. cc: All Counsel _____ Unsigned; signed signature page and amendment sheets, if any, to be filed at trial. _____ Reading and signing not requested pursuant to C.R.C.P. Rule 30(e). AGREN BLANDO COURT REPORTING & VIDEO, INC. 216 - 16th Street, Suite 650 Denver, Colorado 80202 4450 Arapahoe Avenue, Suite 100 Boulder, Colorado 80303 RICHARD ROSENTHAL VOLUME I April 9, 2012 Ortega, et al. v. City and County of Denver, et al. 11-cv-2394-WJM-CBS The original deposition was filed with Qusair Mohamedbhai, Esq. on approximately April 17, 2012.

Ana Alicia Ortega, et al. vs. City and County of Denver, et al. Videoconferenced Videotaped Deposition of Richard Rosenthal - Volume II
243
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CIVIL ACTION NO. 11-cv-02394-WJM-CBS ________________________________________________________
245
PURSUANT TO NOTICE, and the Federal Rules of Civil Procedure, the videoconferenced videotaped deposition of RICHARD ROSENTHAL - VOLUME II, called by Defendant City and County of Denver, was taken on Monday, May 7, 2012, commencing at 1:40 p.m., at 1625 Broadway, Suite 880, Denver, Colorado, before Lisa Persichitte Reed, Certified Realtime Reporter and Notary Public within and for the State of Colorado. INDEX EXAMINATION By Mr. Rice By Mr. Reynolds By Mr. Mohamedbhai PAGE 248 323 326 INITIAL EXHIBIT DESCRIPTION REFERENCE 99 Citizen Oversight Board Annual Report -100 Citizen Oversight Board Annual Report 292 101 Citizen Oversight Board 2007 -Annual Report Citizen Oversight Board 2008 A Year In Review 103 Citizen Oversight Board 2009 A Year In Review Citizen Oversight Board A Year in Review 2010 105 Executive Summary prepared for Year 2005 104 102 300 302
1 2 3 4 5 ANA ALICIA ORTEGA; KELLY BOREN; KRISTAL CARRILLO; 6 SHARELLE THOMAS, 7 Plaintiffs, 8 v. THE CITY AND COUNTY OF DENVER, a municipality; OFFICER 9 10 RICKY NIXON, in his individual and official capacity; 11 OFFICER KEVIN DEVINE, in his individual and official capacity; OFFICER JOHN DOE ONE, Denver Police 12
Department Internal Affairs Bureau; OFFICER JOHN DOE TWO, Denver Police Department Internal Affairs Bureau Police Officer, in his/her individual and official capacity, Defendants. ________________________________________________________ VIDEOCONFERENCED VIDEOTAPED DEPOSITION OF RICHARD ROSENTHAL - VOLUME II May 7, 2012 ________________________________________________________
13 14 15 16 17 18 19 20 21 22 23 24 25
254
244
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Also Present: Carie Finegan, CLVS 16 17 18 19 20 21 22 23 24 25 For the Defendant City and County of Denver: THOMAS S. RICE, ESQ. Senter Goldfarb & Rice LLC 1700 Broadway, Suite 1700 Denver, Colorado 80202 Phone: (303) 320-0509 Fax: (303) 320-0210 Email: trice@sgrllc.com For the Defendants Ricky Nixon and Kevin Devine: BRIAN R. REYNOLDS, ESQ. Bruno, Colin, Jewell & Lowe, P.C. 1999 Broadway, Suite 3100 Denver, Colorado 80202 Phone: (303) 831-1099 Fax: (303) 831-1088 Email: breynolds@bcjlpc.com APPEARANCES For the Plaintiffs: QUSAIR MOHAMEDBHAI, ESQ. Rathod Mohamedbhai, LLC 1518 Blake Street Denver, Colorado 80202 Phone: (303) 578-4400 Fax: (303) 578-4401 Email: qm@rmlawyers.com
246
1 2 3 4 5 6 7 8 9 10 11 12 43 13 14 15 68 16 17 18 19 20 21 22 23 24 25 Annual Report 2011 Office of the Independent Monitor 305 Fourth Quarter 2011 report by the Independent Monitor 67 Citizen Oversight Board A Year in Review 2011 275 271 (Deposition Exhibits 99, 101, 104, and 110 were not referenced.) PREVIOUSLY MARKED EXHIBITS DESCRIPTION PAGE (Deposition Exhibits 99 through 110 were marked prior to the commencement of the deposition.) 106 107 108 109 110 Executive Summary for Year 2006 Executive Summary for Year 2007 Executive Summary for Year 2008 Executive Summary for Year 2009 Office of the Independent Monitor Annual Report 2010 259 261 264 265 --
Stevens-Koenig Reporting
303-988-8470

247
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS (Deposition Exhibit Numbers 99 through 110 were marked prior to the commencement of the deposition.) THE VIDEOGRAPHER: We are on the record at 1:40 p.m. on May 7, 2012, at 1625 Broadway, Denver, Colorado. This is the continuation of the deposition of Richard Rosenthal, in the matter of Ana Alicia Ortega, et al. versus the City and County of Denver, et al., in the U.S. District Court for the District of Colorado, Case Number 11-cv-02394-WJM-CBS. The videographer is Carie Finegan. The court reporter is Lisa Reed of Stevens-Koenig. Will counsel please state their appearances. MR. RICE: My name is Tom Rice. I represent the City and County of Denver. MR. MOHAMEDBHAI: Qusair Mohamedbhai from Rathod Mohamedbhai on behalf of all the plaintiffs. MR. REYNOLDS: Brian Reynolds appearing for the defendants Nixon and Devine. THE VIDEOGRAPHER: And if the reporter will please swear in the witness.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
249
Q Okay. And the idea was to create a proactive environment so that where problems arose, they would be attacked as opposed to simply being allowed to fester, right? A Correct. Q The idea was to make Denver a leader in these respects, true? A Yes, it was considered one of the most robust civilian oversight law enforcement programs in the country. Q Okay. And the overall mission, as announced in your reports of the Office of the Independent Monitor, was to provide transparency and accountability to the Denver law enforcement agencies, true? A Correct. Q All right. Now, in your role as Independent Monitor, you did not serve as a policymaker; is that right? A Well, I would make recommendations on policies, but the actual decisions as to policies or disciplinary decisions would be made by the heads of the department of safety. Q All right. So talking specifically about the police department, you would make recommendations to the manager of safety and the chief of police,
248
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RICHARD ROSENTHAL, VOLUME II, having been first duly sworn, was examined and testified as follows: EXAMINATION BY MR. RICE: Q Good afternoon, Mr. Rosenthal. We're continuing your deposition that was commenced, oh, about a month ago, and this is now the completion of it because we ran out of time on the prior meeting. And as I indicated, I'm representing the City and County of Denver, and it will now be my opportunity to ask you questions in the case. So let me first direct your attention to 2005. That's when you came to Denver to act as the City's first Independent Monitor, correct? A Correct. Q And the office was just then being formed, right? A Correct. Q So let's talk a bit about what the goals were of the Independent Monitor's office. The overarching goal was to improve the Denver Police Department and the other public safety agencies in the city, correct? A Well, yeah, and certainly in general, yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
250
right? A Correct. Q And then it was ultimately for those individuals to make decisions about policy? A Right, and then if there was a substantial disagreement or I believed that they weren't acting reasonably, then I would publicly report on that disagreement. Q Of course. Now, also in your role as Independent Monitor, you don't speak on behalf of the City, right? MR. MOHAMEDBHAI: Object to form. A That's correct. Q (BY MR. RICE) All right. You're an independent office that has the role -- as we've already outlined it, you speak independently, not necessarily on behalf of the City? MR. MOHAMEDBHAI: Object to form. A Correct. Q (BY MR. RICE) Okay. Your position was one of oversight, right? A Correct. Q And so when you would have disagreements, you would speak candidly, right? A Oh, I'm not sure I understand the question.
303-988-8470

251
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Candidly -Q Meaning that you would -A -- to individuals behind the scenes or handling my reports? Q In both. A Well, I would be very circumspect, generally, in my reports, my public reports. The idea was I would speak candidly with the members of the departments, the mayor's office, with anyone in city government. But I would need to be generally careful in what I would say publicly, because sometimes if I were to report exactly what I thought, it would be embarrassing the departments, and it would potentially reduce my chance of getting that done in the future. So my public reports were not -- would oftentimes hold back on areas of concern I had because if I felt that by holding it back at that time, I could potentially have a beneficial impact in the future, I would do so. Q Okay. But I think, as you said in your earlier part of your deposition, when it ultimately came to a situation where you didn't think you could effectuate change, then you would speak openly, right? A Correct. Well, it's a little more tactical than that, though. It's also, there may be times when
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
253
the complications that exist. Will you agree with that? MR. MOHAMEDBHAI: Object to form. A Yes, I would agree with that. Q (BY MR. RICE) Okay. And, of course, this is one of the reasons why an Independent Monitor can be useful in a major city police department, because there are so many complications, correct? A Correct. Q Okay. Now, in your years that you were in Denver, do you believe that initiatives were put in place that improved the Denver Police Department? A Yes. Q Okay. And we'll be looking at some of the Citizen Oversight Board reports that occurred over the years you were here, but I think the verbiage they used was that you ultimately were a positive agent for change within the law enforcement community. Do you agree with that? A I believe so, yes. Q Okay. Now, let's take the time, then, if we could, to review some of those initiatives that were undertaken while you were here. And I want to first direct your attention to 2005, which was the first year that the independent office -- Independent Monitor's
252
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I would put into a draft report some verbiage. And then if I got a positive response from the department, they were willing to work on that issue, then I would take it out and I wouldn't put it in the final report. It was -- a lot of what I did was tactical, trying to figure out if just -- if by backing off for now, I might be able to get a better result in the future. And oftentimes, if you publicly report on it and they've already felt embarrassed or what have you, they may not be willing to even consider changing their position in the future. Q Okay. Fair enough. A So it was a bit of an art -Q Understood. A -- as to what I made public versus what I would speak to candidly behind the scenes. Q All right. But when it came to speaking with the department, you told it like it was? A Yeah. Q Okay. Now, managing a major city police department is a complicated undertaking, isn't it? A Absolutely. Q All right. It's -- there is not a lot of similarity between a major city police department, and a suburban police department may be a tenth the size of
254
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
office was opened. And if you'll find Exhibit 105 there. That should be -A Yes, I have it. Q That's the executive summary of the report that your office prepared for the year 2005, correct? A Correct. Q All right. If you'll go to Page III, and the numbering on these is in Roman Numerals. A Okay. Q Reference is made there to a complaint-handling investigation system that was created. Was that new to the department? A Which page -- you're on Roman Numeral III? Q Yes, and you're on Exhibit 105? A Right, Exhibit 105, I just -- Roman Numeral Number II, that page talks about the goals that we achieved in 2005, and the next page has a bullet point at the top, and then it goes to the complaint handling and investigations. Q Right. And what it says is the OIM created a new complaint/commendation brochure, right? A Correct. Q Okay. Now, what was that all about? A Well, the idea was that there was already a brochure that the department had, which just explained
303-988-8470

255
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 how Internal Affairs complaints were handled. And what we did was we created a new form, which was not just a pamphlet, but was also a complaint form and -- so that somebody could basically fill out the form, put it in the mail, pre-addressed, prepaid postage, addressed to the Monitor's office. And that way, any citizen complaint could go directly to the Monitor's office from these forms. So we had -- these forms took the place of the brochures that they -- I think they just had them in Internal Affairs. I'm not even sure if they were distributed throughout the districts. I don't remember that they were. But this form, then, became distributed throughout the city at all of the police departments, headquarters, and all of the district offices, as well as the city council offices, the courts, the jails. Basically, any place where we felt that somebody might have a complaint against the police would reasonably expect this form to be at, we stocked them, and we kept them stocked over the years. Q All right. Then if you'll go back to Page Roman Numeral II of Exhibit 105, the second bullet point there talks about enacting new policies regarding complaint handling? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
257
by going to either the Monitor Web site, the COB Web site, the Citizen Oversight Board, the police Web site, or the sheriff's Web site. So that, obviously, dramatically improved people's ability to have access to the complaint system. Q All right. Now, sticking with that 2005 report, if you'll move to Page VII. A Okay. Q There is a section there regarding timeliness? A Yes. Q All right. And the only thing I want to ask you at this point is that right from the beginning, when you came to the -- or excuse me, the Independent Monitor's office, this idea of timeliness and completion of Internal Affairs investigations and disciplinary proceedings was identified as an area that needed attention, correct? A Right. I specifically identified that one of the big problems was that there actually was not even a date in the Internal Affairs database which showed when -- the date the case was closed. So it was impossible for the department to figure out how timely their case handling was.
256
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q Was this brochure a part of that? A No, that was -- I suppose it was a part, but really what that referred to is the new policies and complaint handling specifically relating to the filtering process, as well -- I'm speaking Canadian again, I'm sorry -- the filtering process, and -- as well as the way we would handle complaints with the creation of the Monitor's office. So what happened was I worked together with the department to create these policies for them that then worked together with our own internal processes to ensure that citizen complaints got handled appropriately and that reason, logic, and common sense was used in making decisions about how to assign these complaints. Q All right. And so those new brochures, and then the improvements in the process, did that lead to a more efficient system for handling complaints? A Oh, absolutely. Q Okay. And it made it easier for people, if they had a concern with the actions of the police department, to register a complaint? A Absolutely. In fact, we also included Web site complaints so people could file their complaints
258
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
And I recognized and brought to the department's attention, and they agreed, that we needed to get a handle on timeliness and try and improve it with respect to all internal cases, and at that time in particular, the critical incident cases. That was the highest priority. Q All right. And so fair to say that it was identified as a priority for your office right from the beginning? A Absolutely. Q And it was not something, then, that was ignored. It was something that was given great attention over the years, true? A Yes. Q Okay. And -A Well, I don't -- by whom? Q Well, I'll come back and we'll talk about a little more detail on a later report, but what I'm saying is in your office, this was a matter of significant concern from the beginning? A Yes. Q And not ignored by you? A No, absolutely not. Q All right. Now, let's move to Exhibit -A Tom?
303-988-8470

259
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Yes. A I'm sorry, Tom, let me just also point out related to that was we created timeliness goals from the very beginning which hadn't existed before. So the idea was it's very hard in a large organization, urban police organization, to maintain timeliness unless you actually have goals and understand what you are trying to achieve. So we did that at the very beginning as well. Q Yes, and a little bit later, we're going to get to some of those goals and we'll talk about some of the results that were achieved over time, all right? A Perfect. Q All right. Mr. Rosenthal, if you would move to Exhibit 106, which is the executive summary from your office for the year 2006. A Okay. Q And go with me to Page III. A Roman Numeral III? Q Yes. A Okay. Q Reference is made there to a new mediation process that was created, correct? A Correct. Q All right. Tell us about the mediation
261
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
their complaints that would increase satisfaction and improve timeliness and give them the opportunity to have a stake in how it was handled, to be able to decide for themselves how it was handled, to be able to go in a room with an officer and allow the people who were actually most affected to gather, discuss, and address their concerns, and make it a positive impact for everyone. Q Okay. And did it grow over time? A Yes. Q Okay. And did you consider it a success? A I considered it a great success, even -- it even continued to grow even after my relationship with the police union deteriorated. It's -- I consider it to be one of the greatest successes of the Monitor's office. Q Okay. And would you consider it a forward-thinking step? A Yeah. Q Okay. A And the department deserved credit for being on board with it from the very beginning. Q All right. Now, if you'll go to Exhibit 107, which is the executive summary for the year 2007.
262
260
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 process. A The mediation program did not exist in Denver until we got there, and it was -- one of my first goals was to create a robust citizen police mediation program. And we were actually, very quickly, with the cooperation of the department and the mayor's office, city council, the department, and the police union as well, even got the president of the police union to do a short-segment videotape to go on it, as well as the commander of Internal Affairs, to talk up the mediation program at the beginning. And we basically created what ended up being one of the most successful citizen police mediation programs in the country and one of the largest as well. I think the only one that always beat us was New York City because they have 35,000 officers to our 1,500. And then San Francisco was able to beat us for a couple of years, but as far as per capita, per officer, we almost always had the second largest program in the country from the date it was initiated. Q Okay. And the gist of it was to create an alternative process to air out complaints people had about the police department, right? A Absolutely. It was an opportunity for community members to have an alternative way to address
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A Okay. Q And if you'll look at Page III -- again, these are all Roman Numerals on these reports. Reference is made there to the creation of -- excuse me, implementation of a new personnel assessment system that has the acronym PAS in 2007, correct? A Correct. Q What was the PAS? A The personnel assessment system was basically an early intervention-type system, which was developed by the department originally, and then enhanced as a result of recommendations that my office made in the creation of a working group, which basically tried to enhance its use so that it could identify problematic behavior by employees at an early stage, and then attempt to resolve those problems before it got to the point of an officer having to be disciplined for a bad act or -- in order to reduce the risk of officers using force on occasions where they didn't necessarily have to use force or reduce the risk of them using excessive force in the future. Q Now, before the creation of this PAS, the Denver Police Department already had an early warning system, right? A Right. They called it, I think, EIS, the
303-988-8470

263
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 early intervention system. And then when we upgraded it and created the new policies, we changed the name to personnel assessment system. Q All right. So what this was was just an improvement on an existing system? A Exactly. Q All right. And did you think that it worked well? A Well, as far as I could tell, the department was really, again, at the forefront in this area. You know, between mediation and the PAS system, the department was really ahead of the pack. I never did get the opportunity to do the audit of the system that I wanted to do to really see how well it was working. One of the problems was I was so involved in the disciplinary process and the reform of this disciplinary process that reviewing and getting involved in really reviewing the PAS system became a bit problematic because of the concern that people would feel within the department that the disciplinary system was leaching into the personnel assessment system, which is supposed to be kept separate. I also had believed that they were -- they had been using the numbers from the beginning, the number of incidents, and I really always wanted them
265
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 making that recommendation about a different statistical approach to the use of the data, right? A Exactly, exactly. And that one, we never did get implemented. Q All right. Now, go to Exhibit 109, which is the 2009 executive summary from your office. And if you'll go to Page Roman Numeral IV. A Okay. Q Right about the middle of the page, there is commentary about the PAS system, the personnel assessment system, correct? A Yes. Q And in your status report, you say, "The OIM believes that the DPD's early intervention system is one of the best in the country and is operating per expectations"? A Right. That was in 2009, yes. Q So as of 2009, your year-end report, the assessment was that the PAS system was working extremely well? A Right. And what I remember was we -- what we had done for that report was we had looked at -- we identified on our own the number, the officers that had the largest number of uses of force and checked to make sure that they were, in fact, identified by the system
264
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to, instead, start looking at the bell curve and looking at -- and I can't remember the statistical term for it, my analyst always talked about it, the Z scores, and there was one other term. So I really wanted them to work on identifying officers by the percentile rank compared to similarly situated officers rather than straight numerics, and we never quite got there. As far as I know today, they are still using the numerical system, which is weaker. But when -- in comparison to other departments, to the best of my knowledge, they are doing extremely well, but without having been able -we didn't have the resources to do that audit of the system I wanted to, so it's difficult to say how well it's working other than that the system that's in place is certainly -- seems to be better than most in the country. Q Look at Exhibit 108, which is the executive summary from 2008, and go to Page Roman Numeral IV. A Okay. Q Down at the bottom of that page, there is reference to the status on the PAS system, correct? A Correct. Q All right. And there is where you are
266
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
and that some kind of action had been taken by the department to review their actions, and they had been doing so. So the only issue, then, became to what extent -- or how good were the interventions. That's what we had not gotten to. So at this point, though, we had conducted -- and I look at it and I think I shouldn't have used the term "audit." That's really a term of art. It should have been review, so I'm actually a little surprised that we said we had the opportunity to audit the system. We should have said opportunity to review how the system is working. Q Okay. A But basically at that point in time, we certainly -- I certainly did believe it was one of the best in the country and was operating per expectations, but I wanted to -- let me look and see what my goal was for the next year. Oh, okay, it was to conduct annual evaluations, but over time, my goal kind of morphed into the idea of I wanted to actually look at the actual evaluations that were taking place and make sure that they were being done appropriately, and that's what we didn't get to. Q All right. But just at the bottom line
303-988-8470

267
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here, Denver's system was forward thinking, wasn't it? A Absolutely. Q It was one of the best that you had seen anywhere? A Yes, absolutely. Q All right. Now, let's pick up another bit here. Go back to that 2008 OIM report. That's Exhibit 108, please. A Yes. Q All right. And I want you to go to Page V, if you would, Roman Numeral V. And at the very top of the page there, there is reference to the fact that DPD had implemented, as of October 1 of 2008, its new disciplinary matrix? A Correct. Q All right. Now, I think this was discussed in the early part of your deposition, but just in capsule form, what was the disciplinary matrix? A Well, the concept was to try and create a document which would bring all of the command officers in one place so that they would understand exactly what the expectations of the department were, and if an officer committed certain types of violations, how the department should treat those violations. And the intent was to try and make sure, try
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
269
forward-thinking program on the part of the DPD? A Yes. Q Now, another thing I want to ask you about is on Page VIII of that report, the one we're looking at, 2008, there is a section at the top of Page VIII there about departing from the truth? A Correct. Q And the thing I want to ask you about is the new disciplinary matrix we just discussed, that made it a presumptive termination from an officer who had intentionally or deliberately departed from the truth, right? A Correct. Q So the idea being that if somebody lied about something material, then the presumption would be that the discipline for that would be termination? A That was the plan. Q All right. Did you also support that? A Yes. Q All right. Now, taking these things as a group, we had the new complaint system that we talked about. There was the new mediation process that was created as an alternative means for dealing with complaints. There was the new early warning system referred to as the PAS system, and then there was the
268
270
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 new disciplinary matrix that was implemented, all of these things before 2008, correct? A Correct. MR. MOHAMEDBHAI: Object to form. A Well, not before 2008, but the discipline matrix came into place October 1st of 2000- -Q (BY MR. RICE) Yeah, I misspoke -A Up to and including 2008. Q What I meant to say was before the end of 2008, all those things had been accomplished? A Well, yeah, I mean, they were -- I'm not sure I like the word "accomplished," because they all required constant vigilance and they required implementation and what have you, but they were all in place. Q Right, absolutely. And what I'm getting at here is these initiatives had all been put into place by that date, right? A Correct. Q Okay. And do you believe that that was substantial progress that had been made with respect to creating a better system for receiving and then handling complaints made against Denver police officers? A Yes.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
and create a consistent system where the public police officers and command staff were all on the same wavelength, because previously, they were not. And I think it was Al LaCabe who had said the only thing -- prior to the disciplinary matrix, the only thing consistent about the imposition of discipline within the DPD was how inconsistent it was. So the matrix was -- in fact, went in great detail. The idea was when you take into account the violation and you take into account the officer's history, that you would come up with a range of discipline that was within a close range, and be able to figure out whether there are mitigating and aggravating factors such that you could reach the appropriate result and a consistent result in the imposition of discipline in the future. It's kind of the do-over. Q All right. But the idea here was to have overall a fair, more predictable discipline system, right? A Yes. Q And you very much supported the matrix, didn't you? A Absolutely. Q Did you also think that that was a
303-988-8470

271
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, there are other initiatives that occurred during your time with Denver as well, correct? A Correct. Q And we find those set forth in these various reports, true? A Correct. Q Now, I want to change our discussion here and talk about some of the things that were brought up in the first part of your deposition. And if you'll find Exhibit 67, that is the Citizen Oversight Board report for the year 2011, correct? A Correct. Q And, again, to review, the Citizen Oversight Board was what? A It was a group of seven members of the community who were appointed -- or nominated by the mayor, confirmed by city council to four-year terms. And their job was primarily to oversee the Monitor program and to publicly report on how it was working, and then also had some -- or the ordinance also provided for opportunities for them to review and make recommendations on policy initiatives and some other aspects. But the big part of it was they were looking over the monitor program, the disciplinary program, and
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
273
were the -- your supervisor. On the other hand, it was a body that you provided information to and reported the status of your various initiatives, right? A Yes. Q Okay. And then they would also ask for additional information sometimes? A Correct. Q And then provide you with advice, and then ultimately, they would issue their own reports, correct? A Correct. Q All right. Now, the reports that were issued by the COB on the annual basis, is it true that in large measure, the information they reported came from your office? A Yes. Q Okay. Now, here is why I asked you that question: If you'll look at Exhibit 67 and go to Page 8. A Okay. Q Down at the bottom of the page, there is the commentary about the decreased quality of DPD Internal Affairs investigations, right? A Right. Q Okay. And this was discussed at some length
272
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what have you, and then trying to ensure that it was working effectively and make recommendations, and they provided me with substantial advice and consult over the years. Q The COB was created at the same time of and in conjunction with the creation of the Office of the Independent Monitor, right? A Correct. Q Okay. So they were to work in concert, with the COB being a board who you would report to? A No, no, I didn't report to the COB. Q Okay. Go ahead, explain. A I reported to the mayor, mayor's office. I was a mayoral appointee, but the Citizen Oversight Board was appointed, basically, one, to provide advice and consult to the Monitor; and two, to make recommendations as to the policies -- as to department policies and how the Monitor's office worked to evaluate my work and then publicly report. Q Yeah, and -A But it was not a reporting mechanism where if the COB told me to do so something, I had to do it. It wasn't -- they did not have the hiring and firing authority over my position. Q And I didn't mean to suggest that they
274 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in the first part of your deposition, but in essence here, the COB was reporting their concerns about a decrease in the quality from an overall standpoint of the Internal Affairs investigations that had occurred, right? A Correct. Q And they identified various specifics, including a decrease in the good-faith collaboration between the Internal Affairs Bureau and your office, true? A True. Q Concerns about leading and suggestive questions being used? A Correct. Q About poor documentation in the files? A Yes. Q About reluctance to investigate and bring allegations of force and lying? A Correct. Q A reflexive defense of officer's conduct? A Right, right. Q And then the assumption that an officer's credibility was superior to that of citizen witnesses? A Correct. Q Okay. Now, all those things that were 303-988-8470

275
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 listed by the COB in this report actually were things that had come from you; isn't that right? A Yes. Q Okay. So if you'll go with me to Exhibit 43, which is another one from the prior deposition. This is your fourth quarter report from the year 2011, true? A Yes. Q And if you go to Page 43 -- excuse me, Chapter 4, "Conclusions." And I think I wrote it that way because I don't think there is actually a page number here. A Okay. Q So are you with me? There is a section at the end of the fourth quarter report there that's got the header "Conclusion"? A Yes. Q And it says, The Monitor's Office has noted, during the past year, a high level of resistance to the OIM recommendations intended to ensure thorough and complete investigations? A Yes. Q All right. Now, that's the same concerns that we just looked at in the COB report? A Similar, yes.
277
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And one of the things that I had done was that I was trying to address this not through the public reports, but internally by having conversations with command staff, by asking for debriefings with investigators, by asking for transfers of investigators who weren't doing the jobs right. And the idea was, though, that I did not want to publicly report on it because if I did, it would be along the lines of embarrassing the department such that they would no longer have motivation to improve. So it was only towards the end of 2011 when I concluded that I -- that it had gotten so bad that my failure to publicly report on it would be an abrogation of my duties and responsibilities in public reporting. Prior to that, though, it was all an attempt to try and fix this problem without necessarily using the bully pulpit. Q Okay. A Through compromise and -- not necessarily compromise, but through collaboration with the department. Q All right. So let me come back and pick up some of those time marks that you just gave us. The first one I think you identified was the implementation of the matrix in October of 2008, correct?
276
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Now, here is what I want to talk about, is in terms of the time frame that's being referenced here, this says, "The Monitor's Office has noted during the past year." What year was that? A That was during the year 2011. Q And had there been prior concern before 2011? A There had been, but not enough to make it into my reports, so the idea had been that I had -even in -- well, from the very beginning, there had always been issues with respect to investigators asking leading questions or being biased. And what I used to say at the beginning was, you know, "I didn't need their hearts, I just needed -- the investigators' hearts, I just needed their mind." So as long as they asked the right questions and did what I needed them to do, I didn't care whether they were biased or not. And, you know, I just need to make sure the investigations had integrity. Over time, particularly after the implementation of the matrix, and then it got highlighted even more after Manager Perea resigned and then even more after the termination of about 12 officers in the spring of 2011, it just kept getting worse and worse.
278
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q All right. Now, since the matrix wasn't even implemented until that date, there would be a certain amount of time lag between October 2008 and when any case arising under the matrix would start to be moving towards any sort of discipline decision, right? A Correct, but what we have to -- what you would have to think is that the matrix was implemented with a lot of fanfare. So the impact on Internal Affairs would have been for cases that occurred after October 1st of 2008. So it would have -- the impact on Internal Affairs would have begun even before any disciplinary decisions were being made or what have you, because the officers there were aware if somebody -- oh, somebody lied to me today, this is what they are going to face. But what I saw was it just -- there was -the resistance sort of solidified over time, became greater and greater as sergeants began to realize, and lieutenants in Internal Affairs, the true impact that the matrix was having. Q All right. So -A But there would have been a lag time, but it's kind of gray, you know, to try and just say, you
303-988-8470

279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know, black line, you can't do it. It would say changes within the culture of Internal Affairs that were occurring in part as a result, I think, I believe, of the implementation of the matrix. Q Okay. So the question I've got is knowing that date, October 1, 2008, and understanding your belief that that had some impact upon these investigations, when did you start to see any material change in the investigations? A I would say probably -- and this is a little hard. I'm trying to remember. I would say it may have been almost immediate, but it wasn't anything we didn't think we could handle. You know, it was about educating and, you know, calming down concerns and letting, you know, sergeants know that we weren't just -- we weren't on a witch hunt. We weren't out to just go out and fire officers as an example. But I would say we almost -- I mean, there was a lot of angst, certainly in Internal Affairs, from the date the matrix came into place. And there was a lot of debate also initially as to whether or not it applied to cases that were initiated before the matrix, but where officers were interviewed after the matrix date. So if an act occurred in June of 2008, there 280
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
281
A Yes, it's a little hard to say. I mean, I think in general, that's a good way to describe it. It's a little hard because every once in a while, you get one that just was blatant, and then we just deal with it. But maybe systemic is more -- the better terminology. It really became systemic after Perea's resignation and then systemic and solidified after Manager Garcia took over. Q All right. So before the Perea resignation, there was no bright line where you could say this is when there was a less-than-subtle change in these investigations. Is that fair to say? A Yeah, that's very difficult. I would have to say instead, it was more -- cases would arise, concerns would arise, and we would deal with them on an ad hoc basis. Q All right. And if you had to draw a bright line, it would be the Perea resignation? MR. MOHAMEDBHAI: Object to form. Q (BY MR. RICE) Is that fair to say? MR. MOHAMEDBHAI: Object to form. A Yeah. I mean, I would say that's the first bright line. Q (BY MR. RICE) Okay. And then -A Manager Garcia.
282
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q I'm sorry. With our satellite -A It's like a level, you know. I mean -- and I think you're right. There was sort of this bright line after Perea resigned where we really -- we started to notice we were -- you know, it appeared to be getting -- it appeared to be systemic, but then when officers started being fired under Manager Garcia, that's when it just got to the point where I knew at that point that I would have to publicly report on it because it was just -- it had gotten to the point where failing to do so would be failing to do my job. Q And to put a time mark to this, Perea's resignation was sometime in 2010; is that right? A Right, it would have been, I think -- wasn't it the end of July 2010, I think. Q All right. And then, again, the other bright line you've drawn is when the new Manager Garcia had issued various termination decisions, right? A Correct. Q And now we're talking 2011 is when that occurred? A Correct. Q All right. Now, I could take you through the reports, but let me see if we can gain some agreement on this without having to go through that.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
was not a clear understanding whether or not -- if the officer was then interviewed in November, whether or not the matrix would apply. And the ultimate decision was yes, it would. We call those hybrid cases where the discipline for the actual conduct was pre-matrix but an officer is potentially liable for making that statement post-matrix. So it was the kind of thing where I'm not sure I can put my hand on it, but I would say we started dealing with it almost immediately, but I didn't necessarily see the real problem starting to develop until probably 2009, and then it really didn't -- as I mentioned before, it really didn't get dramatic until after, first, Ron Perea resigned, and then after Manager Garcia started terminating officers, then it just became vehement. Q Okay. So -A It was a gradual thing. Q All right. Here is what I want to ask, were the initial changes that you saw in the IAB investigation subtle? A I think that would be fair. Q All right. And it wasn't until later that you started to notice these less subtle changes in the IAB investigations, right?
303-988-8470

283
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If we went through the 2008 report from the Office of Independent Monitor, there would be no reference in there to decreased quality of IA investigations. Is that fair to say? A I believe so, yes. Q All right. And the same would be true for the COB report for that same year? A I -- yes. Q All right. And then skipping ahead to 2009, which is the year of this event, there similarly was no mention in your public report of problems with the IA investigations, right? A Correct. Q And the same would be true for the COB report for 2009. That also would not call out any concerns about decreasing quality of IAB investigations? A Right, and during that period where we were handling it internally. Q Right. And then the same would be true for 2010? A Correct. Q 2010, there would be no public reports concerning the problems with the IA invest- -- IAB investigations, true? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
285
so as of 2010, that was still my strategy. As 2011 went through, I realized that that strategy was not working, and it was simply enabling biased investigations by Internal Affairs and that I, frankly, had to, at that point, publicly report on problems. Q Now, Mr. LaCabe was the manager of safety through June of 2010, right? A Correct. Q Which would mean that he was in that office for roughly a full year after the Denver Diner incident happened, right? A I don't have the date in front of me. I assume, sure. Q The Denver Diner incident, as I understand it, occurred in July of 2009. And so if -A There we go. Q -- LaCabe was in office until June of 2010, that would mean he was there for a full year after the Denver Diner event? A Right. So yeah, so he -- I think he retired June 30th. And then -- that's right, Perea would have stayed until the end of August. Q Okay. Now -A He was there for two months.
284
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Right, except that what I would have to point out for 2010 was Manager Perea's resignation was like a bomb went off, you know, within the city and the Denver Police Department. And while I certainly had concerns, my hope and expectation was we would be able to get beyond that. Q Mm-hmm. A And so for me to start being critical of these Internal Affairs Bureau actions at that point, I felt would be counterproductive. It also -- and it turned out, and it was unfortunate because it enabled Internal Affairs to a certain extent, as of the end of 2010, what my conclusion was was that as long as the right decisions were being made, I did not want to be publicly critical of an investigation if the right decision was made in the end, because all I would be then doing is giving the officer fodder to potentially eliminate that disciplinary decision. So I actually realized by 2011, Internal Affairs was taking advantage of this, and what they were doing was basically they knew that as long as -and it didn't matter what they did. As long as in the end I was convinced that the department did it right, I wouldn't publicly criticize their investigations. And
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
286
Q Yes. You worked well with Manager LaCabe, right? A Yes. Q In your view, he was committed to doing the right things? A Absolutely. Q And did he support your office? A Yes. Q And the two of you worked collaboratively, right? A Yes. Q I think you said in your earlier deposition that people made the statement that LaCabe was driving the bus of reform and you were pushing it over the speed bumps? A Yes. Q Okay. So if you had problems with the IAB, Manager LaCabe would have supported you, wouldn't he? A Yes. He knew about the problems, and he worked with me to support -- to try and fix them. Q But historically, Manager LaCabe was supportive of any of your recommendations with respect to the IAB? A Yes. Q And he didn't turn a blind eye to your
303-988-8470

287
289
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And it even occurs amongst kids in school, doesn't it? A Right, being called a tattletale. Q All right. So I mean, this is not something that's unique to the Denver Police Department, right? A Not at all. It is -- it's highlighted by the fact that within law enforcement, obviously, the negative impact can be potentially greater than other places in society. But yes, it's -- with the Denver Police Department, it would be unfair to suggest that they are standing out when -- it's them alone. It is all departments in the country have different levels. I used to come up with various levels the departments would have, some greater than others. The idea is that New Orleans, New York City, Chicago, they were well known for having codes of silence that would allow officers to commit felony acts and take bribes and commit violent crimes, and still, officers wouldn't report on each other. So you had to look at the culture of each and every department to see at what level the code of silence exists. Very few departments are you ever going to find one where every single act of misconduct is reported on regularly by other officers. Q Okay. And converse --
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
concerns? A No, but of course, remember, he could only really -- there were times when I got him involved at earlier stages, and he was able to stop something bad from happening. But more often than not, most of his actions had to be -- had to wait until he got the case, which was at the end. But that in mind, he was very supportive of the Monitor's office. He was very supportive of my concerns and did his best to try and alleviate or fix those concerns whenever they were brought to him. Q Okay. My only question is this: Did Manager LaCabe turn a blind eye to your office's concerns? A Not at all. Q And just the opposite, as a matter of fact? A Correct. Q Okay. All right. Let's go back to that Exhibit 67, which is the COB report for 2011. A Got it. Q And there was another matter that you were asked about earlier in your deposition at Page 9 regarding the so-called code of silence? A Yes.
288
290
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A That's going to be the aberration. Q Okay. And you've just put your finger on it here, saying that there is a code of silence is one thing, but being able to, in some manner, measure how pervasive or how deep it runs is very difficult, isn't it? A Absolutely. Q It's almost impossible to find out, isn't it? A It's one of the problems of using -- like using the term "culture," figuring out what the culture of a department can be very difficult because, you know, you're always going to have those officers who it doesn't matter what the culture is, they are going to do the right thing regardless. And you are going to have another group of officers who it doesn't matter how good the culture is, they are going to be the rotten apples that need to be brought out of the department -- when we are talking about larger departments. So yes, I mean, coming up and figuring out what the culture of the department is and to what extent the code of silence is part of that is -- can be difficult. Now, in some departments over time, it
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q There had been nothing set forth in any COB report from 2005 through 2010 about a code of silence, correct? A Correct. Q So the first time that this came up in any type of public report was in 2011? A Sure. Obviously, it was discussed a lot before that, but as far as public reporting was concerned, yes. Q All right. So -- and what this code of silence is, is it's a way of describing a tendency on the part of officers to not report wrongdoing on the part of another officer, right? A Correct. Q Now, is it true that a code of silence, as we've just described it, exists in every police department? A It exists not only in every police department in the country, if not the world, then, you know, in all levels of society in all professions. Q Okay. So doctors and lawyers? A Yes. Q Does it occur in other parts of government besides police departments? A Absolutely.
303-988-8470

291
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 becomes easy, as we said, New York, Chicago, New Orleans, it became fairly -- when the Blue Ribbon Commission Reports came out, the Mollen Commission and the Christopher Commission of Los Angeles, they were able to really put in enormous effort and resources and come up with comprehensive reports that identified where those cultures were. That type of thing has not been done in Denver. Q Okay. All right. Now, let's go back, pick up another piece from this 2011 COB report. If you'll go with me to Page 10, there on Page 10 under Paragraph 6, there is reference to these concerns about untimely command reviews, right? A Right. Q All right. And this is a part of the concerns that you and I discussed early on today, and that has to do with a concern about untimeliness in all phases of the investigation and disciplinary review process, right? A Right. Q Okay. So I mean, basically, you break it down. There has to be an investigation done of a complaint, right? A Right. Q And then there is a command review, that is
293
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Right. Q And there is kind of a mixed report there. There is some reference to the fact that there has been some improvement in the investigation time frame, right? A Right. Q But also some concern that other things lag from time to time, right? A Right. Q But at least at this point in time, the COB was reporting that they supported the hard work and diligence of your office in trying to increase timeliness in these matters, right? A Right. Q Okay. Now, let's go to your report for 2006, which is Exhibit 106. A Okay. Q And I think on Page VII, there is a section entitled "Timeliness"? A Right. Q And you mentioned earlier in your deposition that you had set some goals for the department in terms of timelines that they were to meet, right? A Right. Q And one of those was a goal trying to close
292
294
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 all cases within 150 days, right? A Correct. Q And what you reported in this 2006 report was that only 3.3 percent of the cases that were closed in that year 2006 took longer than the target date of 150 days, right? MR. MOHAMEDBHAI: Object to form. A Correct. Q (BY MR. RICE) All right. So the other way of saying that is that something in excess of 96 percent, 96 percent of the cases closed within the target deadline that year? A Right. Q Let's go to Exhibit 107, which is your report for the year 2007, and look at Page IV. There is -- the second goal stated on that page is a goal of increasing the timeliness of formal Internal Affairs investigations and disciplinary review boards, right? A Right. Q And the report was that in the latter part of 2007, there was a significant improvement in the timeliness of the investigations, right? A Correct. Q And you were reporting that that was a result of the Internal Affairs Bureau command staff's
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
to say the people in the chain of command review the facts once they've been determined through the investigation, right? A Right. Q Okay. And then the third step is the actual discipline process where whoever is the trier of fact and determiner of the punishment makes his or her decision based upon the facts as they present themselves, right? A Right. Q And at various times, there were concerns about all three levels within the Denver Police Department, right? A Correct. Q Okay. Now, let's go back and pick up a little bit of history on this. If you'll find Exhibit 100 for me there, what you should find is the Citizen Oversight Board report for 2006. A Right. Q Do you have that one in front of you? A Yes. Q All right. So go to Page 7. A Okay. Q And in that Section 6, there is a report about timeliness of internal investigations, right?
303-988-8470

295
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heightened vigilance in meeting their deadlines, right? A Right. I think they -- yeah, they started a process of meeting weekly with their investigators and typing up deadlines so that they could improve this area. Q Okay. But the words used there were significant improvements, right? A Yes. Q All right. So people were working on it in 2007 at least, right? A Yes. Q Now, the second component, which was the timeliness of the completion of the reviews, that was still a problem, wasn't it? A Yes, I'm trying to look and see -- well, disciplinary review boards and chief's hearings, I recall -- I'm not seeing anything here on the command staff to say timeliness, but there was a period where there was a significant improvement in the districts and their review. And then it was when the chief started making it part of CORE and we saw improvements, and then later, we saw those improvements kind of fell by the wayside. Q The last step in the process, at least at 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
297
And then -- and I can't remember the dates we did this. And then I went back to them and I said, "This isn't working. This is crazy. You need to simply pick a date and then pick out people's names and find if somebody is unavailable on that date, move to the next person." And so we changed that, and I'm guessing that might have been in 2008 when we made that change. It might be in one of my reports where I talked something about that. But even then, it just started to become -it became more -- it became just impossible because then they were also considering when the officer's vacation was, and disciplinary review boards were being put off because the subject officer was on vacation or maybe the union representative was on vacation and needed some time, or they started having to really look at the deputy chief's calendar. And so we just -- we never were able to come up with a way where those things would not take somewhere, on average, and I can't remember, I would have to look at my last report what the average number of days were, it was something like 90 days just -- you know, on average to get a case going to a disciplinary review board.
296
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the police department, was this chief's hearing with the disciplinary review board, right? A Right. And that ended up -- we never were able to get, really, any improvements in the disciplinary review boards until, finally, they were eliminated, and then the chief's hearings were always problematic. We saw improvements at times and then fallbacks. Q All right. And let's talk about that -A Yeah. I'm sorry. Go ahead. Q Let's talk about that a little bit. All right. What was the main impediment to timeliness with regard to these disciplinary review boards and chief's hearings? A Well, with the disciplinary review boards, there were all kinds of problems. At first what they were doing was they would pick the members by a little lottery. And they would figure okay, these are our members, and then they would try and schedule the disciplinary review board to meet on the date that all seven of those people -- six disciplinary review board members and the deputy chief who was going to be chairing were all available. And of course, the result of that was it would take them weeks, months to come up with a date where everyone could come. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
298
On the chief's hearings, that was just always problematic because what we tried to do was ask the chief to allow the detectives into his calendar to simply schedule a date within a certain period after the disciplinary review board, and the chief never wanted to do that. So I would constantly have to remind the chief through e-mails, "Hey, this case, we haven't heard back. It hasn't been scheduled." And there were times where there were lots of improvements and a lot of them were scheduled, and there were times we just wouldn't hear anything back. And it was just -- I don't know. Maybe it went sort of in waves as to how well the chief was -how responsive the chief was in setting up timely chief's hearings. Q So on the disciplinary review boards, or sometimes they are just abbreviated as DRBs, but it sounds like the main problem there was simply trying to schedule an agreeable date on too many people's calendars? MR. MOHAMEDBHAI: Object to form. A Right, that was a big part of it. Q (BY MR. RICE) And the DRB -- just historically, that was an earlier attempt at trying to
303-988-8470

299
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 create a new or more fair process to do these kinds of reviews and make recommendations about discipline, right? A Right. Well, the DRB was created before the Monitor program came into place, and one of the primary goals was to provide some citizen input and input from peer officers and supervisor officers, the people who previous to that had no prior input. So prior to the Monitor's office, it was just command staff that was making these decisions, and they weren't looking towards any outside recommendations. So the DRB was actually created before the Monitor program even started. And then over time, when my office was created, then we were given the opportunity to sit in on the DRBs, as well as their -- the entirety of the DRBs, including their deliberations. And then I could allow those to have an impact on my recommendations as well. Q All right. But -A It was an attempt to improve the process to ensure a less insular thinking. Q All right. Fair to say that it was well intentioned, but imperfect? A Well intentioned and almost disastrous.
301
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 complaints about officers, right? A Yes. Q And one of the major goals was timeliness of disciplinary decisions? A Right. Q And what's reported is timeliness has improved? A Right. Q Okay. So there was some improvement that was starting to be realized in 2008? A Yes. And, again, I would have look at my -the details of my report. I think those -- that might have been the command staff reviews had improvement, and there was probably some improvement in investigations as well. I think the big problems we had with timeliness of investigations really popped up again in 2010 and 2011, I think. Q After the Denver Diner incident? A Yes. Q Okay. Now, go to Exhibit 108. That would be your report for 2008? A Right. Q And go to Page V. A Okay.
300
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q It just became impossible to schedule these things? A Well, it wasn't just the scheduling. The impact on timeliness was obviously significant, but the recommendations of the DRB ended up being, in some cases, laughable, and they just -- they didn't follow the rules. There wasn't enough adequate training for the people involved. There were biases and interests. And in the end, there just was very little value to the recommendations that they were making. Q All right. So your recommendation was that the DRB be discontinued? A Yes. Q And that ultimately occurred, didn't it? A Yeah, it took a while, but we got there. Q Okay. Now, go with me to the 2008 COB report. That would be Exhibit 102. A Got it. Q Go to Page 4. A Yes. Q And then right about the middle of the page there under the heading "Summary," there is mention there about your office having to continue to play a major and active role in overseeing the handling of complaints and performance of law -- excuse me,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
302
Q One of the goals that's listed there, it's the second one on that page, was to increase timeliness of this thing we talked about before, the DRBs and the chief's hearings, right? A Right. Q And at least during 2008, you were reporting that the DPD, that is the police department, had made substantial improvements in the timeliness of the DRBs and the chief's hearings, right? A Right. And this was where they had changed it from trying to find a date that was good for everyone to, instead, finding a date and then assigning people to it. So that had substantially helped the problem. The problem was -- there was still problems, but it was much better than before. And that was a period where the chief was being more responsive to setting up chief's hearings. Again, the averages were -- we never made our goal on that, but it's an improvement during that period of time. Q Okay. All right. Then let's look at 2009. Again, I'll direct you to the COB report for 2009. That would be Exhibit 103. Go to Page 4. A Okay. Q There is -- it would be the third paragraph
303-988-8470

303
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on that page, it talked about the COB urging more timeliness and completing investigation and disciplinary actions, right? A Right. Q And it talks about, in the instance of sustained disciplinary findings, timeliness has been improved in prior years, but those gains were lost in 2009? A Right. Q All right. How significant was the loss in timeliness in 2009 as compared to prior years; do you recall? A I don't remember specifically, but it would have been in our -- the timeliness report of the Monitor's report. Q Okay. A So, again, you know, I had an analyst who was able to -- who mines the data in this area and then put it into our reports specifically. Q Okay. If you'll be patient with me, I think we'll get to those very statistics here in a moment. But the bottom line here is the COB was still showing this as a concern on their part, right? A Right, and this was a concern on our part from my part and the COB's part from 2005 all the way
305 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 these different ways. Q So, again, this was a high priority and you announced it publicly, correct? A Yes. Q All right. So again, at least your office was not ignoring this, right? A Right. Q Okay. All right. Now, what I want to do is drill down a little bit deeper into the numbers here. So let's look at the 2011 annual report from your office, which is going to be Exhibit 68. A There we go. Yes. Q Okay. Go with me to Section 2, Page 18. A Okay. Q And right there on that page begins the discussion about timeliness, correct? A Right. Q All right. Now, you mentioned a few minutes ago, when I was asking you questions, that you had a statistician in your office that was compiling a lot of these numbers about -A Yes, he compiled all the numbers. Q But including these numbers about timeliness, right? A Yes. 306
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay. And these -- what we see starting at Page 2-18 is a report historically from 2006 forward of various findings about these timeliness issues, right? A Right. Q So let me direct your attention to the top of Page 18 there. There is a figure having to do with the goal for closing all citizen internal complaints, right? A Right. Q And so the goal you would have set for the police department was that 95 percent of all complaints be closed within 150 days? A Right. Q Okay. And what we see is that in the year 2009, which was the year of the Denver Diner incident, the police department had achieved a percentage of 91 percent, right? A Right. We're looking at Figure 2.4? Q Yes, sir. A Yes. Q All right. So by 2009, the police department had got within 4 percentage points of your goal of closing 95 percent of all citizen complaints by 150 days, right? A Right.
304
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through 2011. Q And those concerns were made well known? A Yes. Q Okay. So at least your office was not ignoring it, right? A No. Q And the COB was not ignoring it? A No. Q All right. Go to Exhibit 109, which is your report for 2009. A Okay. Q And Roman Numeral Number IV, it would be the second-to-last goal on that page, was improve the timeliness of imposition of discipline for the DPD in all cases where sustained findings are made. That was -A Right. Q -- a goal? And the status of the goal was it was an area that needed significant improvement, right? A Right. You know, I think what we found was that for not sustained cases in general, timeliness had improved, but when we kept looking at those sustained cases where discipline was required, those were the ones where we kept getting -- being challenged in all
303-988-8470

307
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q This same graph also shows us the average number of days that the police department took to close these complaints, right? A Oh, you're talking about 2.5? Q No, on 2.4. 2.4 is showing two things. It's showing the percentage closing the 150 days, and then it's also showing the average number of days to close a file, right? A Correct. Q And so by 2009, the police department had gotten to the point where the average number of days to close a complaint was 66 days? A Right. Q Which is just a little over two months? A Right. Q Did you consider that reasonable progress? A Yeah, and that was, in large part, based upon the idea if you look at the percentage of declines in mediations and informals, that there was a substantially significant percentage of cases that were handled in that fashion, and then that allowed for timeliness to improve on average significantly. Q Okay. So, again, these initiatives that we talked about early in my questioning were starting to bear fruit? 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
309
department with respect to completion of full investigations on Internal Affairs matters, right? A Right. Q So these would be the so-called formal complaints? A Correct. Q All right. And so the goal you had set was that 95 percent of the full investigations of these formal complaints be completed within 150 days, right? A Right. Q And by 2009, the year of this event, the police department had met the percentage of slightly more than 88 percent, right? A Correct. Q All right. So your goal was 95 percent. They were nearing 90 percent in 2009, true? A Right. Q This also reports the average -- excuse me, the mean, not the average, the mean time to complete a full investigation of a formal complaint, right? A Yes. Q And in 2009, the department had gotten that down to 79 days, right? A Right. Q Which was -- that was the second lowest
308
310
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number of days since you started keeping this data? A Correct. Q Okay. At the bottom of Page 19, there is another report there. This one is about your performance goal for completing command review, right? A Right. Q And the goal you had set was to complete 100 percent of all command reviews within 45 days, right? A Right. Q And that would be, what, 45 days of the completion of the investigation? A That was -- yes, yes, exactly. Q Okay. And so there is not much tolerance in that goal, 100 percent is 100 percent, right? A Right, and that was what we were trying to get through rotation was that these needed to get done, and the only way to get them done was if the command staff knew that it was an important part of their job and it was expected that they be done within this goal. And that had been an enduring problem where, basically, the commander's position was we're fighting crime, we're busy, and sorry if we can't get to these, we can't get to them. Q All right. A So that was a continuing problem throughout
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A Yeah, not even starting, but they had borne -- they had already borne fruit, because you can see that, actually, the percentage -- or the average number of days stayed fairly constant, you know, from 2008 through 2010. That's when it started to go up. For 2006 through 2009, it was a fairly straight line. Q All right. But -A And that was -- I'm looking here just to see if I can find the section which talks about, you know, assignments here, and then we can see -- hold on. I'll find it. Oh, there it is. So on Table 2.4, which is at Page 2-6, that's where we were tracking the percentage of cases that were declines versus formals/informals, and service complaints. And this one doesn't show it per year. I'm not sure -- I guess we don't. We would have to look back at others, but basically by this point, the fact that only 8 percent of citizen complaints were being assigned as formals had a dramatic impact on improving their overall performance goal for closing all citizen complaints. Q Okay. And so let's talk about the formal complaints. Let's go to Page 2-19. Again, we're still within Exhibit 68. And at the top of that page, there is a discussion about a goal that you had set for the
303-988-8470

311
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the years. Q All right. A There is a period there when CORE was being used, and I think that must have been in 2008 and 2009 where we saw some improvements, but then after that, it just sort of fell by the wayside. Q All right. And let's focus on those years, all right. So in 2009, the command staff reviews had been completed within 45 days, 78.2 percent of the time, right? A Right. Q And so -- and the year before that, 2008, the command staff reviews had been completed within your target date 78.1 percent of the time, right? A Right. Q So in the year before and the year of the Denver Diner incident, these were the highest percentages that had been met in terms of timeliness of command staff reviews, correct? A Right. And, of course, the problem was unfortunately, as it was normally the case, the 22 percent that weren't done in a timely fashion were usually the most significant cases. Q Fair enough. And the reason was that
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
313
time? A Absolutely. Q So what these numbers show, though, is that in 2008 and 2009, the command staff reviews were being completed within your target roughly eight out of ten times, right? A Right. Q All right. Now, let's also look in that same data compilation there. It's got the mean time to complete command reviews, right? A Right. Q And what it showed was that in the year 2009, the date of the event involved in our case, the mean time to complete a review was 36.7 days? A Right. Q Which was the lowest that had ever been achieved? A Correct. Q And the year before that, 2008, it was 37.1 days, right? A Right. Q The second lowest time frame that had been achieved, right? A Correct. Q All right. So can we take from this the
312
314 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact that it appears as though attention was being given to these matters? A I believe -- yeah, I believe attention was being given to those matters, particularly up to and including 2009. There was some -- 2010 and 2011, we seemed to lose some footing. Q All right. Now, let's go to Page 20 of Section 2 in Exhibit 68. This is the 2011 report. And there, there is data collected about dates for completion of these chief's hearings, right? A Right. Q And we talked about this a few minutes ago. This was one of the things that was the most difficult to get the time reduced, right? A Right. Q Okay. But that notwithstanding, what this is reporting is that in 2008 and 2009, there had been significant improvement over the prior two years, correct? A Correct. Q All right. Do you think that that's in part due to the change that you referenced about first picking a date, then picking people for the DRB? A Yeah, and I think, if I recall, that was also the period where the chief was being a bit more 303-988-8470
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
people -- at least their statement would be that they wanted more time to deliberate the more difficult cases? A Yeah, I mean -- oh, yeah, the cases were bigger. They were -- yeah, they came up with issues so they were always -- that was one of the explanations that would have been provided. Q Okay. But, you know, the numbers -A Actually, that's not really fair. Nobody really ever provided me with an explanation. Q Oh, okay. All right. A You know, I mean -- well, no, hold it, let me -- no, there were times when they would and they would say, "I just don't have the time. I'm really busy. This is really significant." So yeah, I think your explanation is a reasonable one. Q Well, at times, to be fair, these investigation files in a complex matter can be many hundreds of pages, right? A Some of them were massive. Q I mean, it would take -A Three binders, you know, this big (indicating). Q And if somebody really wanted to put their mind to a detailed review, it would take a good bit of

315
317
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 topics here and pick up a few other points from the earlier session of your deposition. You made a decision to leave your position as Independent Monitor actually towards the end of 2011, right? A Right. Q Okay. And the matters that caused you to want to leave and take a new opportunity all arose after the Denver Diner incident; isn't that right? MR. MOHAMEDBHAI: Object to form. A Yes. Q (BY MR. RICE) All right. So let's come back and cover those. One of the major things was the changes in the manager of safety's office, right? A Yes. Q All right. So -- and Mr. LaCabe, who you worked very well with, was there through the summer of 2010, right? A Right. Q So -- and that was one of the reasons why you wanted to look for a new opportunity, was because you didn't have the same kind of working relationship with the new manager of safety? A Right. Q Okay. There was also a change in the mayor's office, and that didn't happen until 2011,
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
responsive in setting up the chief's hearings as well. Q Okay. A But the biggest -- I think the biggest impact was exactly that, was by picking a date instead of allowing everyone else to pick the date, there was significant improvements? Q All right. And then we see, just picking up a last bit of data off this, there was major improvement in the year 2011, right? A Right. Q And is that because the DRB was discontinued? A It was in part because the DRB was discontinued. And if I'm correct, we also had significantly fewer -- well, that might not be right, because we did have a lot of cases going to chief's hearings in 2011. I remember there was one year where the numbers were just -- you know, increased dramatically and maybe -- I don't know. That might have been 2009. But yes, you know there was a dramatic improvement in the -- from the date of the division chief's decision to the date of completed chief's hearing. And yes, as I'm thinking about it, the impact of eliminating the DRB would have been utterly
316
318
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right? A Right. Q There was also an audit that was made of your office, and that was made in 2011 as well? A Yeah, I wouldn't say that that was a reason why I looked for other opportunities, though. Q Oh, okay. Well, I was just going back through your deposition and looking at things that caused you concern with regard to your position in Denver, and I thought that was one of them, was the audit that was undertaken? A Maybe in a general sense, I didn't like the direction that the audit was going. Q All right. And that was not until 2011? A Exactly. Q All right. And then there was also some discussion about perhaps looking for changes to the OIM ordinance that were discussed, and that wasn't until 2011 as well? A Correct. Q All right. So all the things that caused you to want to make a change happened well after the Denver Diner incident; is that true? A Right. And let me just point out again that the primary reason for making the change was the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
dramatic. Q Okay. All right. Now, just taking all these things combined, if we focus on the year 2009, which is the date of the event involved in this case, there had been improvement in all three stages of the discipline process in terms of improvements in time frames; isn't that correct? MR. MOHAMEDBHAI: Object to form. A Yes. Q (BY MR. RICE) All right. So there had been improvements in the time to complete investigations, right? A Correct. Q There had been improvements in the time to complete command review, correct? A Correct. Q And there had been improvements in the time frame for completion of the chief's hearings, right? A Right. Q All right. So certainly further improvement was desired, but there had been, at least statistically, marked improvement, hadn't there? A I think at that point, we felt very good about where -- the direction we were headed. Q All right. All right. Now, let me change
303-988-8470

319
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opportunity that was provided to me. Q We don't want to leave that out, that -- you got a great opportunity there in Vancouver, right? A Right. I would say even though the papers keep saying that I left to create a similar office in BC, that couldn't be further from the truth. The office I'm creating in BC is ten times larger with substantially different jurisdiction and powers, and it's something that is an office that doesn't even exist in the United States. So a big part of -- regardless of what the challenges were in Denver, a significant part of why I left, or the major part, is because I had a better opportunity come up. Q In fact, it might be that you would have taken that position even if things were going great in Denver? A It's certainly very possible that would have happened. Q Now, you were also asked about making a request to the Department of Justice to investigate the Denver Police Department? A Right. Q When did that happen? A Publicly?
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
321
Q All right. A Again, I could be wrong on exactly when it came out. Q But regardless, it was in 2011, right? A Correct. Q Okay. You also -- in the prior deposition, there was some discussion about disagreements that you had with Manager Garcia, correct? A Yes. Q And all of those happened in 2011 as well? A Correct. Q And then there were also some discussions about disagreements you had with Manager Martinez, right? A Right. Q And all that happened in 2011 as well? A Correct. Q All right. Last topic I have to ask you about is in the prior deposition, you were also asked about the effect that the Police Protective Association, that is to say the union, had upon your ability to do your job. And I think the comment you made was that it was minimal before the Perea matter? A Correct. Q So explain that.
320
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Sorry. A You said publicly, when did that happen? Q No, when did you make a request to the DOJ? A That would have been -- you know, I'm not remembering. It was either November or December, probably November of 2011. Q Of 2011? A Right. Q All right. And you had not made a request of the DOJ to investigate the Denver Police Department before then; is that true? A That's correct. Q You were also questioned about some of the decisions from the Civil Service Commission, and I'm paraphrasing here, but basically, you made a comment to the effect that the hearing panel of the Civil Service Commission had created a new rule where an officer could lie and get away with it. Do you know -A Something like that, yes. Q When are we talking about? When did the Civil Service Commission do that? A That would have been in the decision involving Officers Palomares and Torrez, and I believe that decision came out -- I think it was December of 2011.
322
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A It's -- you know, the relationship, frankly, with the police union and their willingness to work with us was generally fine up until the time that Manager Perea resigned. You know, there would always be issues that would float up or there would be resistance here or there, but on the whole, they were generally reasonable or accessible, and they were a stakeholder that could be communicated with. They would periodically attempt to lobby Manager LaCabe or Mayor Hickenlooper to try and claim that I was acting -- that the Monitor's office was acting outside of its ordinance abilities or suggest to city council members issues and concern. But, again, up until the -- up until the date that I released the report on the LoDo case, there -- it was a working relationship. And it was on that date, it was like the day before I released the report that the president of the PPA, the then president, I believe it was Mike Mosco, called me and basically said, you know, "Don't issue this report. If you do, we're going to have to come after you." And it was after that date that there was no longer a working relationship and that the unions made a constant effort to undermine the Monitor's office, undermine me, undermine the matrix, and do whatever
303-988-8470

323
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they could to roll back the reforms that had been put into place. Q Okay. And to put a time mark to this, we're talking about the late summer of 2010, right? A Right. Q Okay. Over a year after the Denver Diner incident? A Right. Q Okay. And prior thereto, you are saying that while there is natural tension between the Monitor and a police union, there had been a collaborative working relationship? A Yes. Q Okay. All right. I think those are all my questions, Mr. Rosenthal. It's possible the other attorneys may have some additional questions. Thank you very much for your time today. EXAMINATION BY MR. REYNOLDS: Q Mr. Rosenthal, I do have a couple of questions. Can you hear me okay? A Yes. Q Delay in the investigation and discipline process was a concern of yours, correct? A Correct.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
325
consistent with the prior objections I made on that point. And I think that is a part of the deliberative process privilege. So I would instruct you not to answer that question, sir. Q (BY MR. REYNOLDS) Sir, did you make any specific recommendation about the length of time the investigation process took in this case? MR. RICE: I think it's the same objection. Q (BY MR. REYNOLDS) That is a yes or no question. MR. RICE: Well, it's the same objection. You are asking whether or not -MR. REYNOLDS: If the answer is no, then there is no recommendation, which means there is no privilege. MR. RICE: That's not right. You're asking him for an evaluation, an evaluation of a particular case. That's the problem. Q (BY MR. REYNOLDS) Sir, have you seen these discipline cases where the delay in the investigation has impacted the officer's abilities to recollect? A Yes. Q And that's a real concern that you have as the Independent Monitor?
324
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And one of the reasons delay in the investigation process is a concern is because it can cause delay in interviewing the subject police officers? A Correct. Q And the longer the delay in interviewing the subject police officers, the more chance there is of their memories being diminished or them having difficulties recollecting the event? A Exactly, yes. Q And is that what happened in this case, the Denver Diner case? MR. RICE: Well, I'm going to object to him commenting about a specific case for the same reason that I objected in the prior deposition session. Any recommendations or evaluations that he made with regard to a specific case, we're going to object to on the basis of deliberative process privilege. Q (BY MR. REYNOLDS) Now, I'm not asking for any recommendations that you made. I'm asking whether that is what happened in this case, there was delay in the investigation process? MR. RICE: But you are asking for his evaluation of a particular case, whether or not delay played a part in it, and that -- I have to be
326
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q That's all the questions I have for you, sir. Thank you. EXAMINATION BY MR. MOHAMEDBHAI: Q Mr. Rosenthal, I have some follow-up questions. Again, this is Qusair Mohamedbhai. Now, Mr. Rice was trying to -- you remember the line of questioning about the bright line and the resignation of Manager Perea? Do you recall that conversation? A Yes. Q Now, the events that you reported to in 2011, did they just appear in 2011, or were they issues that were concerns throughout the years? A Well, as I've previously stated, these issues -- many of these issues existed over the years, and some years, there were improvements, and in some years there were not, or in some years, there were reductions in performance over time, but figuring out systemically how it happened is difficult. Q Well, were there issues that were systemic to the Denver Police Department that just occurred in 2010 and 2011, or were these issues that have been created throughout the years?
303-988-8470

327
329
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made concerning issues with the Denver Police Department that occurred in 2009, the internal deliberations? MR. RICE: I object to the form of the question. Go ahead. A Right, I -- you know, I knew what the ordinance was when I went to work for Denver. It included a deliberative process privilege. I believed that there are public policy reasons that favor that being an ordinance. There are certainly limitations that are put on some of the things that I could publicly report, but it also enabled me the benefit and the power to have more influence on -- you know, on the department over time. So I would not say that I'm being prevented from disclosing. I would say that's what the law is, and there are -- you know, and reasonable people can argue as to whether or not that's -- the statute is appropriate as a public policy, but I found that in some ways, it was very beneficial to the work that I did in the long-term. Q (BY MR. MOHAMEDBHAI) The concerns that you testified to previously in the deposition between you and I, did many of those occur in 2009 as well? MR. RICE: Object to the form of the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
A I -- in general, the issues didn't just show up on their own. It's something that was -- there were constant issues with -- depending on who is working on a case, depending on the case, the issues would potentially get worse or better. You know, the problem is that speaking in real generalities about this is difficult because different investigators had different weaknesses and different strengths. Perhaps they would have weaknesses or strengths depending on the type of case. This is one of those things where there are these gray areas as to how well the Internal Affairs Bureau would perform over time. Q Well, let me -- the fact that something was not publicly reported in your previous reports from 2007, 2008, 2009, 2010, did that mean that the issue did not exist? A No, I explained that earlier today. Q And, in fact, a lot of the issues that were not publicly reported were being handled internally; isn't that correct? A Correct. Q You would be making recommendations on specific issues internally? A Correct.
328
330
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. Q (BY MR. MOHAMEDBHAI) That was a poor question. Let me ask a better one. The concerns that you testified to in the previous deposition, were those concerns also present in 2009, 2008, 2007? MR. RICE: Object to the form of the question. THE DEPONENT: I'm sorry? MR. RICE: I just objected to the form. Go ahead. A At various levels, different -- there are always issues. Q (BY MR. MOHAMEDBHAI) What were the systemic problems that you observed with the Denver Police Department in 2009? A All right. That's very difficult to answer, because we're talking about -- I was employed there for six years, so for me to break down one calendar year without referencing, you know, the annual report -- I mean, certainly anything that I put in my annual report, and in each and every year, I identified certain systemic concerns that we were trying to address or wanted to address. So actually, perhaps the best way is to just look at the 2009 annual report and see what
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Q So, for instance, the code of silence was publicly reported in 2011, correct? A Right. Q Does that mean that -A By the Citizen Oversight Board, not, I don't believe, by me at any point in time. Q Did that mean that you did not have concerns about the code of silence in 2010 or 2009 or 2008? A Well, I had -- you know, I always -- with any department, I always have issues with code of silence because there is going to be a code of silence in any and all police departments, so . . . Q Well, tell me what recommendations you made in 2009 internally concerning the code of silence. MR. RICE: Well, now, you are getting into his recommendations, okay, and I think that's part of deliberative process privilege. When he makes a recommendation to the department for policy change that's not publicly reported, that is part of the deliberative process. Q (BY MR. MOHAMEDBHAI) Is it fair to say that you have been prevented from going into all deliberations that you made -- strike that. Is it fair to say that you've been prevented by Denver from going into all recommendations that you
303-988-8470

331
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 recommendations and concerns we had in that final chapter, but off the top of my head, that's just not something that I can really answer. Q We'll come back to that when I find the report. A Yeah, and I'll point out in each and every one of my reports, I had a chapter which I called Special Initiatives and Policy Issues where I addressed systemic issues of concern, and I also did the same thing in our -- in Chapter 1, which would have been the overview of the reports, I did the same each and every year. But as I mentioned before, that does not -the fact that it does not appear in the report does not necessarily mean that it was not a problem that I was addressing. It just means it was a problem that I felt that I was able to address without necessarily publicly reporting on it. Q Now, there was some questions and answers regarding your relationship with Manager LaCabe. Do you recall that? A Yes. Q Now, is it fair to say that you and Manager LaCabe had a healthy relationship? A Yes.
333
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 him for the length of time it took, but that was really the only criticism I had other than the occasional case which I publicly reported on. Q Why was it necessary to create the matrix? A As Manager LaCabe had previously mentioned, discipline in Denver had become -- was extraordinarily inconsistent because, one -- well, one, the problem was you were getting recommendations from command staff, from lieutenants that differed from that from commanders, that differed from that from division chiefs, that differed from that of the disciplinary review board, from the chief, and up to the manager. And the manager would get eight different decisions, and they would be all over the place. There was no consistency, there was no clear understanding within the department of what the expectations were. Everyone seemed to have their own opinion on how discipline should be meted out. And so, in part, we needed to create a document which would explain to everyone what the expectations of the department were and get everyone on the same wavelength. In addition, historically, there was a problem where every time that a break was given to an officer, it created a new comparable, so the idea -- so
332
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q You may not have always agreed, but it was always professional; is that -A I wouldn't say it was always professional, but it was always -- we would have robust discussions, and Al would -- or Manager LaCabe would listen, Manager LaCabe would lecture, Manager LaCabe would argue, but in the end, I -- there were very few times when I felt that his decision was unreasonable, and those I publicly reported on. And there were even fewer times or, if ever -- I never felt that he wouldn't listen and he would not take into account my concerns. Q Did he always go along with your recommendations? A No. Q Were there -A He would always listen. Q Were there any issues in 2009 that jump out at you that Manager LaCabe disregarded the input of the Independent Monitor? A No, I would say he never disregarded the input. I mean, the biggest problem I had with Manager LaCabe was that he took so long in making his disciplinary decisions, but in the end, I could almost always be assured that the decision he made would be the right one. And so I would not publicly criticize
334
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
what it finally came down to was that the -- if a chief previously had decided not to fire an officer for an offense that five, ten years later, the new chief felt or different chief felt or manager felt should result in termination, the manager was unable to impose that discipline because it was considered comparable discipline under -- by the Civil Service Commission. So over time, discipline had been ratcheted down to the point where an officer who pulled a gun on a handcuffed suspect in the jail cell threatened to shoot in the head and then lied about couldn't be fired because prior officers had done acts just as egregious and had not been terminated. So the disciplinary system was simply untenable based upon historical decisions and the way the charter had been interpreted by the Civil Service Commission. So it needed -- we needed a do-over. We needed to start fresh and start over so that we could have a disciplinary system that was respected by the public, as well as the police. Q Now, Manager LaCabe testified to these specific issues. Have you had a chance to review Manager LaCabe's deposition transcript? A No.
303-988-8470

335
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q No, okay. What were the systemic -A Was I consistent with him? Q Very much so, actually. It was very similar. You actually mentioned the same issue with this gentleman in the prison and the gun issue, so it was the same example. A Right, and I'll explain why. It's because that was the example Al LaCabe used when he started the whole process of reforming the disciplinary system. So it's one that he used regularly, and I had read the decision and agreed with him. So that's why we used the same examples, but I've not spoken with Al LaCabe about his deposition or read his deposition. Q Certainly, there would be nothing wrong with that. I was just curious if you did. A No. Q What were the systemic issues that you had identified with the disciplinary system of the Denver Police Department pre-matrix? A Repeat the question. Q What were the systemic issues that you had identified with the disciplinary system of the Denver Police Department pre-matrix? A There were, one, inconsistencies in imposition of discipline, lack of timeliness in
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
337
A Of course not. Q How long was it until you started realizing some of the benefits of the matrix? A Well, that's hard to say as well, because you would like to think that just the training to the matrix and the creation and implementation of the matrix would have had a positive effect immediately on behavior of officers and just their knowledge of what the expectations were and the consequences of that conduct, but it's one of those things where it's extremely hard to quantify to what extent it had that positive affect. Q So it's possible to this day the issues of systemic problems that occurred pre-matrix exist today in the Denver Police Department? MR. RICE: Object to the form of the question. Go ahead. A I didn't like that question at all. I'm sorry. It assumes an awful lot. I'll object myself as vague. Q (BY MR. MOHAMEDBHAI) Okay. A Assuming that's an objection in civil law. Q Is it fair to compartmentalize the systemic problems of the Denver Police Department by year? MR. RICE: Object to the form of the
336
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 imposition of discipline. And the one that bothered me the most was almost -- in order to come up with a decision as to what discipline was appropriate, you were almost grabbing it from thin air. You just had to -- it was by feel, you know. Well, well, this one feels like 10 days or 30 or 60. At first, they didn't even have a maximum amount of discipline, so an officer could get a year or two-year suspension without pay as part of the disciplinary process. And there is a realization that there had to be a place where you could say that after this, you are going to be terminated. So if it's going to be more than 90 days suspension without pay, you shouldn't have a job anymore. So there -- those were the primary problems with the disciplinary process. That differs a bit from the complaint-handling process. Q Now, when did the matrix disciplinary system go into effect with the Denver Police Department approximately? A October 1st of 2008 was when the matrix -that was the implementation date. Q Did the matrix implementation fix all the problems of the Denver Police Department overnight?
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
338
question. A No. I'm sorry. MR. RICE: I'm just making an objection to the form. Go ahead. THE DEPONENT: Okay. A No, I don't think that -- I don't think that's fair. Q (BY MR. MOHAMEDBHAI) Systemic issues with the Denver Police Department don't just resurrect in a year and then disappear in a calendar year and then are resurrected again in a calendar year; isn't that true? MR. RICE: Object to the form. Go ahead. A I guess it depends on what systemic problem you are talking about. I mean, certainly, the elimination of the disciplinary review board had a dramatic effect on timeliness of command reviews. Q (BY MR. MOHAMEDBHAI) What were some of the continuing problems throughout the years that you observed with the Denver Police Department from the day you started to the day you left? A Well, I would have to talk in terms of, really, the Internal Affairs process, as well as the complaint-handling process, but -- and I'm sorry, you're asking what were the systemic problems that I observed from the beginning to the end?
303-988-8470

339
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Yes. A Well, there were obviously timeliness, lack of timeliness, and the handling of sustained complaints was a constant problem, the imposition of appropriate discipline and having it stick was a constant challenge. There was a constant challenge with respect to the bias of Internal Affairs investigators and getting them to document their work appropriately and conduct thorough, complete, and unbiased investigations. There was a constant problem with getting reasonable recommendations from command staff on findings and the imposition of discipline. On the other hand, I have to say that certainly at the beginning -- well, no, throughout it, there were many people in the department who were very open and accessible, many command staff, and interested in our recommendations and interested in using them in their own decision-making processes. You know, I felt that the ability of my office to have a positive effect in a lot of areas was significant. The one other systemic problem that I noted was just with respect to the entry into residences, not necessarily the entries themselves, but the command staff's reaction to those issues was a continuing
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
341
and recommendations to do that. Q (BY MR. MOHAMEDBHAI) Did you have any specific concerns with how the District 6 command staff handled the Internal Affairs investigation of the Denver Diner cases? MR. RICE: Now that one, I do object to on the basis of deliberative process. It goes to a specific case. Q (BY MR. MOHAMEDBHAI) Did you discuss your concerns with the District 6 -- strike that. Did you discuss any of your concerns with the handling of the Denver Diner case with any managers of safety? MR. RICE: Same objection, instruction not to answer. It goes to deliberative process. Q (BY MR. MOHAMEDBHAI) Were you satisfied by the way that the manager of safety handled the Denver Diner cases? MR. RICE: Same objection, goes to a specific case, instruct you not to answer. Q (BY MR. MOHAMEDBHAI) What were the failures of the manager of safety and the mayor's office concerning the Denver Diner cases? MR. RICE: Same objection, goes to a specific case and his recommendations, assessment,
340
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problem. THE VIDEOGRAPHER: We have about five minutes until tape change. Q (BY MR. MOHAMEDBHAI) Were there systemic problems that you observed throughout your time as the Independent Monitor with District 6? A Well, the only -- the main issues with District 6 was the one that had a large -- it always had the largest number of complaints, but that would have been expected, but as a result, the timeliness in the handling of their complaints often suffered. Q Did you identify any specific problems with the command staff of District 6 throughout your years as the Independent Monitor? A I did. Q What were those problems that you had with District 6's command staff throughout your years as the Independent Monitor? A I'm afraid that that might require me to divulge deliberative process. MR. RICE: If you are getting into specific cases, I think that it does, and specific recommendations that you made, I think it does, and I would object on that basis. A Yeah, I would have to go into specific cases
342
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 evaluation thereof. MR. MOHAMEDBHAI: We can take that tape change break now. THE VIDEOGRAPHER: This is the end of Tape 1. We're going off the record. The time is 3:38. (Recess taken from 3:38 p.m. to 3:44 p.m.) THE VIDEOGRAPHER: We are back on the record at 3:44. This is Tape 2. Q (BY MR. MOHAMEDBHAI) Mr. Rosenthal, I'm almost done. I just have a few more questions. Discussing the systemic issues that were prevalent at the Denver Police Department pre-matrix, did you observe the impact that it had on officers' conduct on the streets? A That's -- to make the connection is extremely difficult. I don't think it's really possible to make that connection. It's almost like asking whether or not, you know, severe criminal penalties, what impact -- or what impact the death penalty has on people's conduct, and I think sociologists would probably argue that for generations. Q Do you have -A So -Q I'm sorry. I didn't mean to interrupt you. A No, it's just -- I am not sure that you can
303-988-8470

343
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 really reach that conclusion -Q Well, are there -A -- one way or the other. Q Are there specific cases that you can use for examples of officer conduct issues that you identified as issues resulting from the disciplinary process pre-matrix? A Well, I mean, the primary one was about lying and that there were just cases where it appeared almost cultural that officers were not -- you know, would not come in and be necessarily honest with Internal Affairs, and that seemed to be an ongoing problem. Q And what cases were those that you observed cultural issues of lying? MR. RICE: And when you get into a specific case, we get into deliberative process issues, and so I object. Q (BY MR. MOHAMEDBHAI) Was there any improvement with officer conduct from any measurable standpoint post-matrix with excessive force matters? A Well, we -- I had not done any particular systemic evaluation of that sort. That's something that would have to be done. It's difficult to do. From an excessive force standpoint, it's easier to do 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
345
that there was no significant improvement. I mean, there were improvements in certain areas at various times, and I think in the end with the 2010 report, one of the things I pointed out was that the number of cases that had gone over the one-year mark were very few compared to the total number of cases, but those seemed to be the cases that garnered the most attention and, obviously, dealt with the most -- some of the most significant issues. So the biggest problem, I think -- the answer to that question is that the biggest problem was just in the way it was -- the disciplinary system and case-handling process was organized, which required multiple levels of review; the fact that there was -would be a logjam, basically, at the division chief level. The division chief of patrol was the one person who was required to go through all these cases, many of them extraordinary and voluminous, you know, a certain level of resistance from the chief's office and certainly the disciplinary review board, the mere existence of the disciplinary review board, all made it extremely difficult to have a positive impact on timeliness. Q During your time as the Independent Monitor,
344
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 from a force standpoint, but I'm not aware that that was done. Q Has there ever been a statistical analysis performed by the Independent Monitor concerning excessive force usage by the Denver Police Department? A Certainly not excessive force usage. Excessive force cases are extraordinarily hard to prove; and as such, you know, you can get into an argument or discussion/debate over any individual case as to whether excessive force was used or not. It's usually easier to evaluate according to the robust data they had on all force incidents and looking at officers who used more force than others who were similarly situated or whether or not uses of force compared to contacts went down or up at a particular point in time. That was something that professional standards would potentially do as a result of the PAS system, but that is not something that we had the resources or ability to do during my tenure. Q Why was there no significant improvement with the timeliness of imposition of discipline by the Denver Police Department while you were the Independent Monitor? A Well, I'm not sure that's a fair statement
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
346
did you ever identify any issues or concerns with officers working in secondary employment in LoDo? A That was an issue that I identified as being potentially problematic within the department as to how it was managed. And the fact that officers were able to go out and, you know, solicit different businesspeople to provide them with the service and -- was always an area of concern that I had, but it was not one that I was ever in a position to address or had the resources to address. It would have taken an enormous amount of resources to do a policy evaluation of the Denver Police Department in that regard, but that was an area that I had significant concerns about. Q What were your criticisms about the Denver Police Department's policies with regard to officers being permitted to work secondary employment in LoDo? MR. RICE: To the extent that this calls upon you to divulge recommendations or evaluations you made to command staff, I think it gets into deliberative process, and I would instruct you not to answer. A Right, and I never publicly reported on any concerns relating to the secondary employment rules. Q (BY MR. MOHAMEDBHAI) Did you ever privately
303-988-8470

347
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 raise any concerns with Denver's policies concerning secondary employment in LoDo? MR. RICE: Same objection. MR. MOHAMEDBHAI: I'm not asking what they are. I'm just asking if he did. MR. RICE: Well, you're asking if he had those discussions, which goes to whether or not he consulted on a particular issue, which goes to deliberative process. MR. MOHAMEDBHAI: No, it doesn't. MR. RICE: Sure, it does. MR. MOHAMEDBHAI: No, it doesn't, Mr. Rice. MR. RICE: You've asked him if he had concerns. He told you he did. Now you are asking him whether or not he consulted with somebody about it. MR. MOHAMEDBHAI: That's not what I asked him. A I thought that's what you asked. Q (BY MR. MOHAMEDBHAI) Sure. MR. RICE: Go ahead and re-ask the question then. I think that Mr. Rosenthal and I both think you were asking for whether or not he gave advice on these matters. Q (BY MR. MOHAMEDBHAI) I'm asking if you ever gave advice. I'm not asking what the substance of the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
349
Q What were your concerns about Denver police officers and secondary employment? MR. RICE: Again, speaking to your general concerns, I don't have any objection to it. If he asks about advice or recommendations you made, then I do. But go ahead. A All right. So in general, I was concerned particularly with the idea that officers were able to go out and solicit businesspeople to get business and that individual officers were permitted to manage different sites and keep records of officers -- other officers that it would potentially negatively -- or create a conflict of interest between their duties as police officers and their secondary employment work. So I was concerned that it was not a -- it was not a system that was more centralized and where the department decided on how much it would cost versus individual officers. Q (BY MR. MOHAMEDBHAI) What types of conflicts of interest occur in the performance of your law enforcement duties when one is engaged in secondary employment? MR. RICE: Object to this on the basis of relevance. It has no relevance to this case. Go ahead.
348
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 advice was. MR. RICE: But that goes right to deliberative process because you are asking whether or not he consulted on specific subject matter. MR. MOHAMEDBHAI: So your definition of deliberative process, Mr. Rice, is that I can't even ask areas that he had internal discussions with with the Denver Police Department? MR. RICE: I think that's right, especially when you get very specific like that, besides the fact it has nothing to do with this case. This case doesn't involve LoDo secondary employment, but go ahead. Q (BY MR. MOHAMEDBHAI) Do you consider -- all right. Did you have any concerns about secondary employment at restaurants on Colfax? A That's so specific, I just -- you know, no, I would not have a specific concern about that kind of -- in that level of specificity. Q Well, you consider the Denver Diner incident to be a -- generally addresses issues of secondary employment, do you not? A I don't know that I do. I mean, generally -- obviously, there was an officer on secondary employment, but, you know, my concerns with secondary employment were not specific to that.
350
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A All right. In general, one of the concerns is that the officer might not know who they are working for, you know, are they working for the City or are they working for this person who is paying them? So there is, in general, a concern that officers could potentially overlook criminal conduct that the employer, the bartender, the barkeep doesn't necessarily want them to enforce. So it creates -- it doesn't necessarily mean it happens, but it creates a potential for a conflict of interest between that officer and the City. Then there are also just issues of workers' comp and what have you that are kind of beyond my jurisdiction. Oh, and then -- well, there is also the concern about officers who hire other officers, any conflicts that that would create between, again, you know, officers' willingness to truthfully identify misconduct by other officers. If you are getting money from one officer from a business, you are going to potentially be beholden to that officer. Q (BY MR. MOHAMEDBHAI) Did you have any concerns, during your time as the Independent Monitor, with the Denver Police Department's use-of-force reporting policies?
303-988-8470

351
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RICE: That goes beyond the scope -just a second, Mr. Rosenthal. That clearly goes beyond the scope of my cross-examination. There is nothing even remotely close to that in my questions of Mr. Rosenthal, so how do you justify asking that question? MR. MOHAMEDBHAI: Are you instructing him not to answer? MR. RICE: Well, I'm asking you. MR. MOHAMEDBHAI: No, I don't need to -- I'm not being deposed. MR. RICE: Yes, you do, because I'm trying to confer with you regarding a discovery issue here. THE DEPONENT: Can we take a break for just a second, please. MR. RICE: Sure. THE VIDEOGRAPHER: Going off the record. The time is 3:57. (Recess taken from 3:57 p.m. to 3:57.) THE VIDEOGRAPHER: Back on the record at 3:57. MR. MOHAMEDBHAI: Could I have the last question read back, please. (The last question was read back.) A All right. First, actually, I know their
353
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
force -- didn't the use-of-force policy lend itself to the subjective evaluation by officers that I don't believe that this person was injured, therefore, I don't have to report this? A It's -- it does to a certain extent. Certainly, if an officer sees what they believe is excessive force, they are required to report it. If they don't believe -- if the officer witnesses something that they don't believe is appropriate force as a witness officer, they are not required to report it. The Denver Sheriff's Department did require officers to report uses of force that they witnessed. The question really was that at what point -- and it's really a public policy question, is at what point do you just require everything to be reported versus you provide a level of ability to -you know, a little discretion to officers to recently and objectively report when a certain level of force was used. And it's difficult, because one thing -- you don't want officers to be doing nothing but writing reports. You want them out there on the street answering calls, but at the same time, you want to make sure that if there are significant uses of force or there's going to be complaints, that you have
354
352
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 use-of-force reporting policy was generally robust compared to others. The only concern that I can think of was just with respect to -- well, one, it was a recommendation from the Park Report about not requiring officers to report if they pointed their gun at somebody as a use of force. And the second was that there was always a -- seemed to be a vague -- or well, it seemed like officers weren't always totally clear about what was reportable use of force and what wasn't and that there was some, you know, areas that the person wasn't injured or didn't claim an injury. There were some areas where there were just misunderstandings from officers. On the whole, I thought it was a good policy, which gave us a lot of data and a lot more data than I necessarily saw in other departments, but there were certainly areas where it could potentially have been improved. I remember -- for example, there was one where an officer restrained somebody and tied her legs, and that wasn't a reportable use of force, and that was problematic to me. Q (BY MR. MOHAMEDBHAI) Well, didn't the use of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
appropriate reporting. So it's not an exact science. On the whole, I certainly did not see significant enough problems with it that I felt it was necessary to publicly report on it. Q Did you have any private meetings with Denver officials and the manager of safety concerning the language of the policy for use-of-force reporting? MR. RICE: Same objection on the basis of deliberative process. Q (BY MR. MOHAMEDBHAI) Did you ever observe, during your time as the Independent Monitor, specific cases in which law enforcement officers would cite to the text of the use-of-force policy as a justification of their failure to report significant force? A I'm not sure I understand the question. Q Sure. During your time as the Independent Monitor, did you ever observe situations where officers justified their failure to report force due to the ambiguity created by the written policies? A I'm not sure that is a fair question. There are -- you know, certainly when an officer was confronted with the situation where it was alleged or believed that they should have reported force and they didn't, they would either acknowledge that they made a
303-988-8470

355
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mistake or they would attempt to justify why they didn't do it. So, you know, there -- as I said, yes, you know, a policy is not necessarily black and white in certain areas, but I did not find that it was -- that any of the deficiencies in the policy were significant enough that I needed to publicly report on them. I could understand why they wrote it as they did in most cases. Q Did Denver's use-of-force reporting policy lend itself to the underreporting of use of force by Denver police officers? A Certainly the fact that they did not have witness officers report all uses -- all reportable uses of force could potentially lead to underreporting. Q All right. I have no other questions, Mr. Rosenthal. MR. RICE: All right. Thank you, Mr. Rosenthal. THE VIDEOGRAPHER: This is the end of Tape 2 of 2 of today's testimony of Richard Rosenthal. We're going off the record at 4:03. * * * * * *
1 2 3 4 5 6 7 8 9 10 11 12 13 14 _______________, 2012. 15 16 17 18 19 20 21 22 23 24 25 I, RICHARD ROSENTHAL, the deponent in the above deposition, do hereby acknowledge that I have read the foregoing Volume II transcript of my testimony, and state under oath that it, together with any attached Statement of Change pages, constitutes my sworn testimony.
357
_______ I have made changes to my deposition. _______ I have NOT made changes to my deposition.
__________________________ RICHARD ROSENTHAL Subscribed and sworn to before me this _____ day of
My Commission expires:______________________
________________________ NOTARY PUBLIC Address:
356
358
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE OF DEPOSITION OFFICER STATE OF COLORADO ) COUNTY OF DENVER ) I, Lisa Persichitte Reed, a Certified Realtime Reporter and Notary Public within and for State of Colorado, commissioned to administer oaths, do hereby certify that previous to the commencement of the examination, the witness was duly sworn by me to testify the truth in relation to matters in controversy between the said parties; that the said deposition was taken in stenotype by me at the time and place aforesaid and was thereafter reduced to typewritten form by me; and that the foregoing is a true and correct transcript of my stenotype notes thereof. That I am not an attorney nor counsel nor in any way connected with any attorney or counsel for any of the parties to said action nor otherwise interested in the outcome of this action. My commission expires: April 15, 2016. ___________________________ Lisa Persichitte Reed Certified Realtime Reporter Notary Public, State of Colorado
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
WHEREUPON, the foregoing deposition was concluded at the approximate hour of 4:03 p.m. on Monday, May 7, 2012.
303-988-8470

Denver Diner Case: Richard Rosenthal Deposition

Загружено:

Сведения о документе

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Denver Diner Case: Richard Rosenthal Deposition

Загружено:

Авторское право:

Доступные форматы

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 1 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 2 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 3 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 4 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 5 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 6 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 7 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 8 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 9 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 10 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 11 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 12 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 13 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 14 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 15 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 16 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 17 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 18 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 19 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 20 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 21 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 22 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 23 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 24 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 25 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 26 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 27 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 28 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 29 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 30 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 31 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 32 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 33 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 34 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 35 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 36 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 37 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 38 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 39 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 40 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 41 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 42 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 43 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 44 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 45 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 46 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 47 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 48 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 49 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 50 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 51 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 52 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 53 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 54 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 55 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 56 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 57 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 58 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 59 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 60 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 61 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 62 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 63 of 91

Case 1:11-cv-02394-WJM-CBS Document 62-2 Filed 07/16/12 USDC Colorado Page 64 of 91