Pubdate: Sun, 08 Aug 2004
Source: San Jose Mercury News (CA)
Copyright: 2004 San Jose Mercury News
Contact:  http://www.mercurynews.com/
Details: http://www.mapinc.org/media/390
Author: Yomi S. Wronge, Mercury News

JURY TO WEIGH AGENT'S CLAIM OF SELF-DEFENSE IN SHOOTING

Mistaken Identity: Indicted State Drug Officer Faces Trial in Death of 
Wrong Man

Forget that state agents were chasing the wrong man.

Forget that Rodolfo "Rudy" Cardenas never pointed a gun at the
undercover officer who shot him in the back, or that the San Jose man
eerily predicted his own death by police shootout.

Despite every questionable action leading to the Feb. 17 tragedy that
ended with Cardenas' death in downtown San Jose, the heart of the
criminal case against Bureau of Narcotic Enforcement agent Mike Walker
now rests squarely on Walker himself, legal experts say.

The pivotal question a jury must consider is Walker's state of mind
the moment he aimed his Glock .40-caliber semiautomatic pistol at the
43-year-old Cardenas and fired.

"The job for the defense will be to focus the jury to that moment in
time," said Los Angeles defense attorney Bill Seki, who represents
police officers in excessive-force cases.

"Take them back to when the agent had a limited amount of
information, had certain beliefs with regard to the suspect, and put
them in that alley," Seki continued. "If you're a police officer,
what do you do?"

Following a grand jury inquest into the killing, the panel voted to
indict Walker. But an indictment does not equal guilt, or automatic
conviction. It is merely a prelude to a criminal trial where the facts
are complex and support each side.

If jurors believe Walker's claim of self-defense -- that he had good
reason to fear that Cardenas had a gun and would shoot him first --
they must exonerate the former Watsonville patrolman.

But if jurors agree with prosecutors that the 33-year-old Walker was
foolhardy and reckless in his pursuit and killing of the wrong man, he
could be convicted of voluntary manslaughter.

Deputy District Attorney Lane Liroff spent much time during last
month's grand jury hearing exposing the many ways Department of
Justice agents botched the operation.

But when the case goes to trial, the veteran prosecutor said, he will
focus mainly on two critical areas, the first being Walker's claim of
self-defense.

Walker said he shot Cardenas, who was running away from him, only
after the man turned slightly toward him, and Walker thought he saw a
gun in his hands.

No firearm was ever found on Cardenas or at the scene. San Jose police
officers who patted down the father of five right after he was shot
also did not find a weapon. But later, a crime scene investigator
going through Cardenas' bloody clothes found a folding four-inch knife
with a black handle in his left, front pants pocket. Walker said that
could have been the object he mistook for a gun.

On Feb. 17, agents were looking for 37-year-old David Gonzales, a
fugitive wanted for a parole violation on a drug offense. When they
spotted Cardenas, who bore only a vague resemblance to Gonzales, they
mistook him for their target and gave chase.

Cardenas sped away in a van from a North 14th Street garage, leading
agents on a high-speed chase in downtown San Jose. He eventually
ditched his van near North Fourth and St. James streets and ran down
an alley adjacent to a senior-citizen apartment complex. He jumped a
chain-link fence and ran around the corner of the building.

Walker, who had been wearing street clothes over his uniform, said he
warned Cardenas to stop and that he saw Cardenas with what appeared to
be a gun. Walker fired at the man's back through the fence as Cardenas
was trying to flee.

Walker said he believed Gonzales was considered armed and dangerous.
But testimony from other agents and Gonzales' own parole officer
contradicted that claim. The prosecutor has called the chase reckless
and accused Walker of taking unnecessary risks.

Peter Keane, a professor at Golden Gate University School of Law in
San Francisco, said Walker will be hard-pressed to explain his
subjective reasoning to a jury.

"The officer is going to have to come up with some special facts that
would reasonably suggest to him that the guy had a weapon, and just
looking over one's shoulder wouldn't be enough."

Liroff said he believes the threat has been exaggerated to cover up
for Walker's mistake. Liroff said that at the trial he will also focus
on a series of fatal assumptions Walker made that created "tunnel
vision that allowed him to see and experience things in the alleyway
that weren't true."

The defense, meanwhile, must convince jurors that the split-second
decision to pull the trigger was a reasonable option in a desperate
situation.

In the months since the highly publicized killing, information has
surfaced about Cardenas that may explain why he fled from agents, and
Walker's defense team is expected to exploit several key factors.

Cardenas was a low-level drug dealer who was high on methamphetamine
at the time. Police later found drugs in his vehicle. And he
reportedly had a death wish that mirrored his last violent moments.

Dave Darrin, special agent in charge of San Jose's Bureau of Narcotic
Enforcement, believes the defense will revisit the "suicide by cop"
theory allegedly supported by at least 20 statements Cardenas made to
his wife saying if he ever was involved in another police incident, he
would rather be chased and shot by police than surrender.

But Liroff isn't convinced the man was ready to die that way, on that
day.

"This may be the first instance of suicide by cop where the person is
running away," the prosecutor said.

Duane Minard, director of police litigation services for New Centurion
International, a private investigative firm, said the Walker trial
will probably focus on the officer's perception of the level of danger
posed by the man he mistook for a fugitive parolee.

" 'I thought I saw a flash in his hands.' 'We were told he may be
armed and dangerous,' " Minard said, recalling some of the grand jury
testimony by Walker and the other agents. "All these things go into
his perception of the threat when he made this quick decision to shoot."

But Minard, a former Riverside County sheriff's senior detective, said
a more seasoned cop might have reacted differently to the threat in
the final seconds before opening fire and could have taken cover.

Minard, who has testified as an expert witnesses in other
officer-involved shootings, anticipates three key issues will emerge
in the trial:

* The credibility of agent Walker and whether the inconsistencies
broached in grand jury testimony between Walker and his supervisor can
be resolved. Walker allegedly told his supervisor that he shot
Cardenas in the back as he was running away. However, during
testimony, he said he fired only after Cardenas turned toward him in a
threatening manner.

* A critical examination of Department of Justice policy on lethal
force and whether Walker followed the rules.

* What witnesses said they saw happen in the parking lot behind the
Shires Memorial Center in downtown San Jose.

Santa Clara County has never sent a law enforcement officer to prison
for killing in the line of duty, and only one other officer has ever
been indicted on such charges. That 1971 case, in which a black IBM
employee was shot in the back by a San Jose police officer, resulted
in acquittal.

On the other hand, recent community outrage about other reports of
excessive force, and police misconduct scandals in other parts of the
country could undermine the public's long support of law
enforcement.

"It's going to take selecting a jury that respects law enforcement,
but can accept that they can make a tragic mistake and hold them
criminally responsible," Liroff said.
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