From: The Mercury News
By: Nate Gartrell, 5/09/2021
Two weeks after Contra Costa District Attorney Diana Becton announced her office was charging a sheriff’s deputy with manslaughter in a November 2018 on-duty shooting, she faces an uphill battle, beset by divisions in her own office, as well as unanswered questions about why it took two-and-a-half years to file charges — during which time the same officer shot and killed a second man.
In interviews since the announcement, attorneys inside and outside Becton’s office have said the decision to charge Contra Costa Sheriff’s Dep. Andrew Hall with voluntary manslaughter in the death of 33-year-old Laudemer Arboleda was based upon an investigation that was completed years ago but never acted upon. In March, Hall shot and killed Tyrell Wilson, 32, who pulled a knife and took a step toward Hall as he attempted to question Wilson about allegedly throwing rocks at cars and jaywalking.
In a protest letter sent to Becton this week, four county prosecutors said there were no significant investigative developments over the last two years in the investigation and that “delays, such as in this case, create confusion which justifiably erodes the confidence of the public and law enforcement in the process.”
A majority of the attorneys on the DA’s nine-person team investigating new police shootings said they weren’t consulted before Hall was charged. Becton’s office has refused to say who participated in the meeting where, she insists, at least 10 DA staff agreed to charge Hall.
Hall’s attorney, Harry Stern, has also said the discovery he’s seen so far in the case supports the claim that the charges against Hall are based upon evidence that’s been available since 2018.
Civil rights attorneys for Arboleda’s family said this week that county prosecutors had no contact with the family until the day before charges were filed against Hall last month — the same day a jury found Minneapolis police Officer Derek Chauvin guilty of murdering George Floyd.
“I was disappointed that it took as long as it did. If they would have prosecuted this man earlier, Wilson would not be dead,” said Bay Area civil rights attorney John Burris, who represents both families, his voice rising. “That’s a big point to me. If they would have prosecuted him and got him off the street, he would not be dead.”
The DA’s office declined to comment this week on what — if any — new investigative developments occurred in the two years between the initial investigation into Arboleda’s death and the decision to file charges against Hall in the shooting. Becton has attributed the delay for her need to “retool” the way police shootings in Contra Costa County are investigated, including tackling a backlog of police killings dating back to 2018.
Scott Alonso, a spokesman for the DA’s office, refused to say who was involved in the decision to file charges against Hall. The criminal complaint is signed by assistant district attorney Chris Walpole, who moved to North Carolina from Contra Costa months ago, but remains in the third-highest position at the DA’s office.
In their letter to Becton this week, the four prosecutors — who work on the team tasked with reviewing new use of force cases, and who have all taken legal action against Becton — accused Becton of keeping them in the dark about the case against Hall, even as they investigated Hall’s shooting of Wilson and despite her claims that the “team-based” process she implemented for investigating police shootings would ensure transparency.
Hall’s lawyer, meanwhile, has maintained that Becton’s office cleared the deputy in 2018 years ago before deciding to file the charges last month — a claim Becton has emphatically denied.
“The timing of the DA’s flip flop on charging — coming a day after the verdict in the Chauvin case — coupled with this information confirms to me that this was a political stunt rather than a balanced and thoughtful weighing of evidence,” Stern said.
The dissent within the district attorney’s office underscores the challenges Becton faces in bringing charges against a police officer in Contra Costa County, where judges and juries have a reputation for being sympathetic toward police. It has been more than 30 years since the county’s last successful prosecution of an officer for a shooting.
Becton is “in a fight for her life,” said attorney Adante Pointer, who is representing the Arboleda family.
“The DA is going to be undermined every step of the way. She has to be ready for that,” Pointer said. “It comes as no surprise that the old guard who stood by ready to give a pass to any police officer to use force or kill people would have looked at that video and looked away from justice. It’s heartening to know that the new DA gave a fresh look to the case, and is actually willing to pursue justice when justice is called for.”
While “the climate has changed in the last two years toward a far more favorable one for charging police in unjustified use of force cases,” prosecutors who file charges in police shootings still face a challenge in cases like Hall’s, where there are questions about the potential threat he faced, said Jonathan Simon, a professor of criminal justice law at UC Berkeley.
Video of the shooting of Arboleda released by the sheriff’s office shows that after a slow-speed chase into downtown Danville, Hall stopped his patrol car, exited, and ran around the back, toward the sedan driven by Arboleda. Hall positioned himself near the front of the sedan, opened fire and kept shooting even while stepping out of the car’s path. The deputy later testified he was afraid of being run over.
“Juries are unlikely to question [the officer’s] judgment, even now, where the facts are not very clear,” Simon said. “You can expect defense lawyers to be far more aggressive than Chauvin’s lawyer was in cases where the evidence isn’t so shockingly clear.”
And unlike in the Chauvin case, Hall’s prosecution will likely proceed with his employer, the county sheriff, siding with the officer charged. An internal probe by the sheriff’s office cleared Hall of wrongdoing in the Arboleda shooting in 2018; the day before Hall was charged with manslaughter in that case, Contra Costa Sheriff David Livingston told the county Board of Supervisors Hall would return to work after spending several weeks on administrative leave following the shooting of Wilson.