From: The Mercury News
By: Nate Gartrell
MARTINEZ — The attorney for Contra Costa Sheriff’s deputies who shot and killed a Bay Point man at a July 9 SWAT standoff initially told the deputies to refuse to be interviewed, after the county’s District Attorney failed to send a prosecutor to oversee the third party investigation into the shooting, this newspaper has learned.
The drama in the aftermath of the Knightsen police shooting followed Contra Costa County DA Diana Becton’s decision to remove deputy district attorney Barry Grove from his long held position as the primary prosecutor called on to respond to police shootings, according to multiple sources with firsthand knowledge of the situation.
A spokesperson for the DA’s office refused to discuss specific personnel changes but said that Becton is switching to a “team-based approach” in handling fatal incidents involving police officers.
County protocol mandates that officers who fire their duty weapons or are present during another type of fatality be sequestered and investigated by a third party, and that the incident be reviewed by a coroner’s inquest jury in which the officers are typically called to testify.
But on July 9, when more than one sheriff’s deputy shot and killed 44-year-old Eduardo Martinez after he shot three deputies with a shotgun, no county prosecutor arrived at the scene. Consequently, the deputies’ attorneys, Michael Rains, told them to refuse interviews, insisting that a county attorney be present.
The stalemate lasted until the following day, when a deputy district attorney was eventually made available and the sheriffs’ deputies consented to an interview. In the interim, the officers were allowed to leave the hotel rooms where they’d been sequestered and return home, though they were instructed not to discuss the facts of the case with their colleagues, Rains said in an interview Tuesday.
Martinez was the suspect in a lengthy SWAT standoff, that started with a domestic violence call. Police say Martinez doused a woman in gasoline, threatened to murder her, then refused to surrender to police because he didn’t want to “go back to jail.” Deputies shot and killed him after he fired a shotgun at them, striking one the bulletproof vest and another in the head.
The deputies who fired at Martinez have been identified as Evan Cubit, Thomas Brook, and Det. Sergio Duran.
Rains said he was “really disturbed” by what he called the DA’s “lack of a plan” in handling the incident. “My lawyers are not there to help the DA ask questions, the DA has to know what questions to ask and we expect them to be asked,” he said. “It didn’t appear to me that the DA’s office had that kind of team assembled. That’s why we wanted to make sure our clients would be interviewed a single time, otherwise it becomes oppressive and unnecessary.”
Asked to comment on Rains’ remarks, DA spokesperson Scott Alonso said that senior inspectors with the DA’s office — at least two of whom were present in Knightsen — are “highly experienced and highly trained,” and “more than capable of handling the investigation.” He said moving forward, a prosecutor can be “made available by Zoom even if they’re not physically present.”
“We followed the protocol. The protocol doesn’t require an attorney to be present at the scene, nor was this the first time an attorney hasn’t been present,” Alonso said.
The questions surrounding the DA’s response to the Knightsen incident were compounded by Grove’s removal as the prosecutor who handles fatal officer-involved cases. That move came days after the East Bay Express published an article highlighting a Facebook message reportedly posted Grove’s account, in which the prosecutor allegedly wrote that there were a “multitude of places” in the country were a jogger would be “attacked and maybe killed for being a white male.” The post appeared to have been in reference to the murder of Ahmaud Arbery, the Black man who was chased down and killed by two white men in Georgia, according to the East Bay Express.
Grove’s Facebook profile appears to have since been made private or taken down.
Alonso refused to address Grove’s departure specifically, but he implied it was not related to the Facebook comments. Several sources within the DA’s office said Grove planned to retire by the year’s end.
“We are shifting our model away from being dependent on one person to a team-based approached…We’re moving from a person to a process,” Alonso said. The team-based approach includes “making an attorney available” for interviews of officers, as well as sending experienced DA inspectors to investigate the scene, the spokesperson, he added.
But Sheriff Sgt. Shawn Welch, head of the office’s union, said Tuesday he didn’t think that sending senior DA inspectors alone was sufficient in such incidents.
“It is the deputy district attorney who runs the show,” Welch said. “They’re the ones who map it out: who needs to be interviewed, what the crime lab needs to do. They direct everything so that in the end when we are done with the investigation there are no more questions… When you go against something that has worked for so many decades, why would you change it?”