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Monday, October 1, 2012

Mayor Tells PPA to Stop "Character Attacks" After Auditor Clears Cops in Review of Frashour Arbitration Testimony

Posted by Denis C. Theriault on Mon, Oct 1, 2012 at 6:41 PM

Back in June, you'll remember, Portland Police Association President Daryl Turner started detailing confidential arbitration transcripts that he held up as proof of a political fix to fire the cop who killed Aaron Campbell in 2010, and he demanded an independent investigation into the charges.

Mayor Sam Adams, after firing back with some verbal fusillades of his own, wound up agreeing to Turner's demand—commissioning the city auditor's office to look into whether officers lied under oath, whether Chief Mike Reese's command staff intervened in a training analysis of Ron Frashour's conduct, and whether Reese made a deal with Adams to fire Frashour before getting his job in the first place.

The results of that report were released just before 5 tonight. The results are mostly good for Reese and Adams. Auditor LaVonne Griffin-Valade found no evidence that any cop's testimony violated the bureau's policy requiring truthfulness, and "no documentary evidence" that the command staff unduly influenced th review of Frashour's conduct.

The auditor did, however, rap the bureau for failing to craft clear policies on who should participate in training reviews, and when—arguing that lack of clarity did more than anything else to give Turner an opening for his complaints. And the auditor said the bureau should extend its blackout on internal discussions of a shooting case, lifting it after cops are finished talking to internal affairs investigators and not just the criminal grand jury.

We found the Police Bureau’s lack of a standard operating procedure for the development of training analyses to be problematic. Such procedures would define consistent objectives and practices for the development of Training Analysis documents in general. In this particular case, having no such guidance likely contributed to concerns about the purpose, objectivity, and transparency of the Training Analysis and the veracity of its conclusions.

Turner, months ago, indicated he didn't think the auditor's office was really independent enough to handle the review. But Adams this afternoon was quick to follow the report with a statement trumpeting it as vindication.

Based on the Auditor’s findings, I respectfully ask the Portland Police Association to cease their attacks on the character and integrity of members of the Portland Police Bureau, and to start focusing on the facts of this case.

The report itself is 18 or so pages, with another hundred or so more pages of appendices—most of those verbatim transcripts of interviews with bigwigs like Assistant Chief Larry O'Dea, who directly supervised the training review, and Reese. I'm still looking into all of it, but here's what's I've seen so far.

Update 7:10 PM: I'm still working my way through this, but this is pretty major. In the transcripts is an accusation by O'Dea that it was Turner, as PPA boss, who was doing some influencing of his own. He says two cops who sat on the force review board, and agreed Frashour shouldn't have shot Campbell, changed their tunes in front of an arbitrator.

"Then when it comes time to... we’ve got this arbitration coming up, well, I...I’ve changed my mind now and then knowing that Daryl Turner has talked to at least one of them directly. And...and what kind of pressure is he creating...is that creating on this."

O'Dea said "shifty" testimony from witness cops and trainers left him "feeling pretty uncomfortable." "It’s...it’s credibility concerns that I have with some of the people and then I don’t know if I want to say it’s differences of opinion, but I... I felt like there was just some...it felt like there was a circling of the wagons."

He said he felt like the "action-reaction principle" at the core of the arbitrator's opinion—it's reasonable to shoot someone who might shoot you before they pull out their gun—was mischaracterized in this case.

"I’ll tell you it just felt like I was hearing one orchestrated story in there and not individual opinions."

Update 8:25 PM: The PPA's feelings about this investigation show up later in the transcripts. PPA consigliere Anil Karia, representing the bureau's lead instructor on less-lethal and sniper rifles, accused the city of punishing cops who who spoke up at Frashour's arbitration hearing. "Tthis particular investigation is retaliatory."

Original post briefly resumes here:

• The auditor's office looked into whether cops' testimony shifted over the years (only one cop, Jeff Elias, sort of changed things, but not significantly, on how fast Campbell walked backward toward officers before he was hit with a beanbag gun that sent him running and, ultimately, led to Frashour shooting him in the back with an AR-15 rifle.

• The report revealed several more versions of the training review, written by Lieutenants Robert King and David Virtue, at the heart of Turner's complaints. Turner, in his indignation, pointed to the revelation during the arbitration hearing that early drafts of the training review had cleared Frashour, only to change after Reese took office, and went after King, a former union president himself.

The auditor's office examined those changes—and while noting that edits were made by O'Dea's office and Deputy City Attorney David Woboril—found they didn't amount to proof of a fix. (Although, disturbingly, not all of those drafts were turned over to the auditor.)

Update 7:15 PM: A few more points, pulling through the report and O'Dea's testimony. Still more to come.

• One of the training instructors who testified that King never showed him his drafts of the training report, Paul Meyer, told the auditor's office that, in fact, "I don’t recall ever seeing them before they were finished, no.”

• King, now working in the chief's office as lead bureau spokesman, has suggested letting trainers who disagree with a training analysis submit a "minority report" detailing their objections for the record. The chief's office and the Police Review Board both rely on training reports when making the separate but related finding of whether a cop is actually out of policy or not.

• The bureau's training reports have improved in recent years. O'Dea, in his interview, said he was promoted by former Chief Rosie Sizer in 2009 to help fix those reports. He said he was personally offended by the slipshod training report that came after the 2008 shooting of Jason Spoor. "We had had a change in our use of force policy and she wasn’t happy with the speed of the development of all the pieces of where we were going with that," O'Dea said of Sizer. He pioneered having lieutenants, and not sergeants, handle the reviews and says he's required the reports to explicitly tie to cops' lesson plans.

• O'Dea hints that having a civilian in charge of internal affairs and training (under the professional services branch of the bureau), former prosecutor and Reese confidante Mike Kuykendall, has been somewhat problematic since training reviews are best done, he said, by experienced cops. He also confessed at one point asking Reese whether he minds that Adams, for whatever reason, rarely meets with his handpicked chief one-one-one—always asking staff to sit in, too.

"How does that work for you, how do you not get one-on-one time with your boss to be able to talk about things, and that’s just the structure that...that works for this mayor."

• O'Dea also hints that his executive officer made non-substantive edits to King's training review only because she's a better writer than King. "Robert King is a lot of things, but he’s not a strong grammar/spelling person. As you see, with all our PIO postings."

• O'Dea backs up King's assertion during his arbitration testimony that listening to recordings of the involved officers' interviews made as much a difference as reading them. (Although, I'll interject, that after news of Turner's complaints broke [first reported by the Mercury], senior command staff from the Campbell shooting were all seen convening and conferring downtown, including staffers who've since left to work in other police agencies.)

"What I felt from hearing [King] was a journey for him from being a union president, protector of officers, to genuinely believing this was not consistent with what we train and I...and I heard and felt that that was a very personal and emotional struggle for him."

Update 7:52 PM: Now I'm into Reese's testimony, in which he says any accusations of a deal with Adams over Frashour's are "ludicrous."

• Adams has someone from his staff attend and digest Police Review Board hearings to help "the mayor understand the complexity of whatever case they're reviewing." In the Campbell case, which the last one heard by the PRB's predecessor, the Use of Force Review Board, that was then-deputy chief of staff Warren Jimenez.

• Reese says he struggled with the decision to fire Frashour but said once he did he was a "strong advocate" who, "because it involved the loss of life... felt very strongly that he should be terminated."

"I think was a watershed moment when the fact that you had peer members, citizen members, division command and the— and the chief's office all reviewing the same thing I was reviewing and coming to the same conclusion, I think that was probably a watershed moment for me."

• King and Virtue were assigned to the training review before Adams fired Sizer and replaced her with Reese. But Reese didn't have trouble with the assignments when taking over. He said the fact that King served as union president left him "imminently qualified." "Robert had been head of the PPA for many years, so he had been on the other side of the table in many, many deadly force incidents, so he understands the complexity of the incidents and what a thorough and complete investigation and analysis looks like."

• Reese accuses the PPA's mostly retired laywer, Will Aitchison, of having shown training officers and union members a misleading PowerPoint presentation of the Campbell shooting—"it was not factually accurate"—that may have improperly influenced the way officers think about the case. The chief doesn't say what wasn't accurate, but followed with "I think if they're reviewing all of the material in a more sterile environment, without the filter of management or labor, that they may come to different conclusions.

• There's a fine line Reese tries to straddle between saying it's okay for top commanders to point out logical holes, or a lack of thoroughness, in a training review—while at the same time saying it's inappropriate for those same commanders to order changes. I'm not sure that's possible. In my mind, that's a big, big loophole that could allow for pressure in either direction.

Reese did defend Woboril's contributions to the drafts, even though his name wasn't on the report, because Woboril trains officers on the legal implications of use of force.

• Reese is asked about testimony during the arbitration hearing "that there's officers who talk about going on a cookout together and actually discussing this case," and the question comes after, earlier in the auditor's report, an officer talks about socializing with Frashour and other officers involved after the Campbell shooting.

"I think we're in a catch-22 a little bit," Reese replied. "Because the officers have a right and need to be together and talk about these incidents if they're going to heal, and I think these traumatic incidents are life-changing for the officers."

• Here's Reese's verbatim discussion of a system "set up to be very difficult" to fire cops. It's apparently troublesome that trainers with a personal stake in reviewing their peers have too much influence. But it's also apparently a "very, very good" system. Reese doesn't have any answers. Like, say, real civilian oversight.

REESE: It's - it's the system we have is set up to be very difficult to ultimately result in termination of an officer. And I think, you know, we're unique as a profession in how we review these types of matters. So if you're an attorney, you can face a bar issue, but it's not your peers. It's not like the folks at IPR that are attorneys are all going to weigh in and say, yes, you did something wrong or not. And medical doctors certainly have malpractice and boards that review them, but it's not their, you know, the folks up on the hill don't have other doctors that they work side-by-side with weighing in and making decisions about whether or not the surgery was done the right way or the wrong way. So I think we're very unique as a profession in that we ask peer members to weigh in on whether officers complied with training and policies and, ultimately, made good or bad decisions. We've come a long ways in the time I've been in police work to where I think we have officers and command staff who are willing to take a hard look at what we do and hold people accountable. But, again, I think there's always room for improvement and maybe, you know, we should look at other - like - like you said, with the training analysis, is it right that the trainers - should the trainers have a veto over what's written in the training analysis, even though they're peers and they work with that person, they trained them, they may have a personal relationship with them. So I don't - I don't know what the ultimate answer is, but I do think the system we have is very, very good and people are willing to take very critical looks at the most important of all decisions, and that's that life and death decision officers make in these types of cases, and say, yeah, this officer did everything as they should or here's a slightly - they're in policy in training, but they could have done - maybe tried it this way to - where we had in this case, we found somebody out of policy.

Update 8:20 PM: The investigators spent a lot of time talking procedural specifics with report co-author Virtue, who had union representation with him—Captain Bryan Parman, president of the Portland Police Commanding Officers Association and, interestingly enough, the current head of the training division. Virtue starts off by comparing the Campbell shooting with another case where he did the training review: the beanbag shooting of a 12-year-old girl by Officer Chris Humphreys. (Humphreys was found in policy about the same time Frashour was fired.)

"For lack of a better word, they were politicized. I mean there was a lot of attention regarding them, a lot of media attention, a lot of interest both externally and internally," he said.

• Virtue did discuss Chief O'Dea's role in his part of the training review: expert on crisis intervention training, which O'Dea taught to many of the sergeants on scene in the Campbell shooting: "I don’t recall a time where I went and had something written and he came and said, you know, line 43, that’s gotta change... I usually came to him with a question."

• Asked whether he remembers when King, who was drawing up the deadly force portion of the training review, changed his mind that Frashour's decision to shoot really did run afoul of his training, Virtue has an odd answer that raises questions about their working relationship: "You know, it may sound – I don’t recall ever seeing a version that he did not find that it was inconsistent with training."

• "This is totally subjective and just my – my personal assessment," Virtue later said when asked if King, still a probationary lieutenant at the time of the review, was pressured to change that finding. "I thought he had more pressure the other way, to be honest... I think if I was – if you were going to ask me that question about pressure, I would say it was probably he was having the emotional pressure to not find what he – he was reading this and going down a path."

• Virtue makes clear he agreed with King's finding, that Frashour didn't comply with his training: "That was my assessment also."

Update 8:53 PM: King also was represented by Parman when he testified, and, interestingly, King's testimony starts out with what feels like a contradiction. Whereas King talked about the many training reviews he says he teamed with Virtue to complete, Virtue had a different answer when asked, earlier, how often he and King had worked together: "Not very much."

• King gets the money question early on: Did anyone pressure you? He says he "received no pressure, whatsoever." "You know, Lieutenant Virtue and I were never told by anybody, by the mayor, anyone that represents the mayor, by the chief, anybody who represents the chief, Chief O'Dea or anyone else what we ought to conclude or what direction the review ought to take."

• He likes the idea, pushed by the auditor in every interview, that procedures be written codifying when and how training instructors and command staff be consulted in training reviews. "For example, when I was in the arbitration and I was asked why I didn’t include the trainer’s points of view around action-reaction in the review itself, I indicated that I regretted that I hadn’t included those, but, at the time that this was written, it – there was not a [standard operating procedure] in place that provided for what I – what I thought would be like a minority report."

• Did King, or didn't he, provide drafts to trainers. He says "yes, we provided drafts to trainers," and he eventually named names. But King said that while that's important, it's not so simple. "We’ve defaulted to having trainers, officer trainers become more subject matter experts over time than – than the supervisors or command staff, which I think is problematic." Trainers, he followed, "have to be involved, but I don’t think they have a veto."

King cites disagreement with trainers over whether the fact that Campbell had his hands in the wrong place while surrendering amounted to active resistance.

"I never understood how somebody standing with their hands on their head, not putting their hands in the air, is aggressive physical resistance," he said.

• King discusses the "iterative process" behind the many drafts over the months it took him to write up his portion of the training review. He's shown an email he sent himself that's in between his first instinct, that Frashour followed his training, and what he eventually found. King blames not the trainee, Frashour, but the training itself, for failing. He stutters quite a bit in explaining what's behind it.

"You know when you - when you read this particular excerpt of this e-mail that I e-mailed to myself, it really is a - it's a - it's a sort of - this is an example, at this phase of the review, of me really struggling with what happened, how we train officers, what the conclusion - I mean I allude here quite a bit to what the conclusions will be, whether it's - whether it's this or whether it's, you know, something else."

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