Andy Lopez case: Sonoma DA used pro-police expert witness to justify not charging deputy who shot Andy

The Sonoma, California DA who refused to charge the deputy who murdered Andy Lopez used a pro-police expert witness to justify her decision.  The deputy has a history of violence and lying.

UPDATE: to get an idea of the atmosphere of intimidation in Santa Rosa about the Andy Lopez case, the July 11 2014 “Stop Mass Incarceration Bay Area” email list, (stopmassincarcerationbayarea@gmail.com), reports: “Three of Andy’s Youth, ages 13 and 14, were roughed up by the police after leaving the Tuesday rally. The activists in Santa Rosa have been working on get the facts of the story organized. I have been working through last night and this morning to see if lawyers can file a complaint against “sexual assault”. The behavior of the SR police was Extremely inappropriate. As the 3 young women begged the cops for a female officer to search them – the were told to “spread your legs. Spread your legs wide” followed by the officer kicking their legs out to a wide stance. The MALE office then ran his hands over the girls and into their pockets as they protested pleading to not be hurt and for a woman officer. If the plan goes right – There will be a press release tomorrow morning and they will file a claim with the City.”

SF Chronicle, Friday, July 11, 2014

Expert witness in toy-gun case has history of siding with police

Bob Egelko

Called on to investigate the fatal shooting of a toy-gun carrying 13-year-old boy by a sheriff’s deputy, Sonoma County District Attorney Jill Ravitch chose a consultant she described as “an independent, outside expert on human performance in high-stress encounters, such as officer-involved shootings.”

One quality of William Lewinski that Ravitch didn’t mention was his reliability to side with police.

Lewinski, whose website describes him as “one of the nation’s foremost authorities on reaction times and shooting dynamics,” divides his time between training police officers, researching their conduct and testifying on their behalf, usually to dispute accusations of wrongful shootings.

Since 1990, he has testified for police in more than 75 cases in the United States and several in Canada and Great Britain. The Police Firearms Officers Association in Britain honored him in 2009 with its first life-member award for his “commitment to firearms officers in the U.K.,” particularly two he helped to exonerate of murder charges.

One courtroom adversary, Pasadena attorney John C. Burton, who has clashed with Lewinski in two police-shooting cases, describes him as “an uncredentialed police expert who will say whatever they need to justify the situation.”

Had to keep firing

In the Sonoma County case, Deputy Erick Gelhaus shot Andy Lopez seven times on Oct. 22 as the teenager walked near his Santa Rosa home, carrying a plastic AK-47 rifle, its distinctive orange tip removed by a friend.

In his 14-page report, Lewinski found Gelhaus’ explanation supportable “to a high degree of scientific certainty.”

The rifle, he wrote, looked like the real thing from a distance, and Gelhaus had good reason to think his life was in danger when the boy started to turn toward him after being told to drop his gun. “From a behavioral science perspective and an action/reaction paradigm,” Lewinsky said, Gelhaus couldn’t wait until the gun was pointed at him, but had to fire, and keep firing, until the perceived threat was removed.

Lewinski said he reviewed statements by other witnesses, but interviewed only Gelhaus.

Likewise, he interviewed only one person – former BART police Officer Johannes Mehserle – before testifying at Mehserle’s murder trial for fatally shooting unarmed passenger Oscar Grant on an Oakland transit platform in January 2009.

Brought in as an expert witness on police psychology, Lewinski wasn’t allowed to say whether he thought the shooting was justified. But he told the jury in 2010 that factors such as “inattentional blindness” and “muscle memory”can cause an officer under stress like Mehserle to mistake his gun for a Taser, carried on the opposite hip, and to perceive that his captive may be armed and dangerous, even though he was lying face down with another officer kneeling on his shoulder.

The jury acquitted Mehserle of murder and convicted him of involuntary manslaughter. Lewinski also testified for Mehserle last month before a federal jury in San Francisco that found the officer had not violated Grant’s civil rights.

Weighed against other evidence in the two cases, Lewinski’s opinions don’t appear to be extreme. While protesters in Sonoma County continue to demand criminal charges against Gelhaus, they haven’t come up with evidence to contradict Lewinski’s conclusion that the officer thought Andy Lopez was carrying a real gun.

Stacking the deck?

The question that’s now being raised is whether Ravitch, the district attorney, was trying to stack the deck with her choice of consultants.

“He’s an opportunist who will say whatever is expedient to get the cop off, so why in the world would any reputable district attorney’s office rely on someone like him?”asked Oakland attorney Michael Haddad, who tangled with Lewinski over a 2000 police shooting in Oakland. Haddad is president of the National Police Accountability Project, a group of lawyers who sue police, often with the aid of their own experts.

Ravitch responded to an inquiry by listing Lewinski’s academic credentials.

Lewinski didn’t respond to requests for comment, but he’s replied to similar criticisms in the past, most recently after an office that reviews complaints against police in British Columbia said it would stop using him as an expert consultant. One official said Lewinski’s reports seemed biased.

“The science I share in the context of my work is held in the highest regard by top experts in the legal, academic and criminal justice communities worldwide, “Lewinski said in an August 2013 e-mail quoted by CBC News.

Pioneered the field

A native of Canada, Lewinski earned a doctorate from Union Institute, taking his courses online. He then pioneered – or, his critics would say, invented – the field of police psychology, founding a research center now called the Force Science Institute at the University of Minnesota at Mankato, where Lewinski was also a professor for 28 years.

Asked at last month’s Mehserle trial about the fees he charges as an expert witness, Lewinski did not give an exact figure, but said the payments include $475 an hour that goes to the institute.

He regularly testifies that police are justified in opening fire as soon as they perceive a potential threat and can’t wait until they see a gun pointed at them. If Gelhaus, in the Santa Rosa case, had waited until Andy Lopez had fully turned toward him, Lewinski wrote, “he could be shot at multiple times before he could respond.”

‘Shoot-first doctrine’

Lewinski’s shoot-first doctrine led to what he described as a major victory in the case of Anthony Dwain Lee, a Hollywood actor who was fatally shot in the back by a Los Angeles police officer at a Halloween party in 2000 after showing up in costume and pulling out a real-looking toy gun. After Lewinski’s research on reaction times showed that the officer could have been acting in self-defense, he said on his website, the family’s $100 million suit against the officer and the Los Angeles Police Department was settled for $225,000.

But there have also been defeats, like the case of Willie Wilkins, an undercover Oakland police officer shot to death by fellow officers as he tried to arrest a suspect in 2001.

Lewinski, hired as an expert by the city in a damage suit by Wilkins’ family, cast doubt on the testimony of other officers who claimed to have heard Wilkins identify himself before he was shot. Stress, he asserted, may have confused them or clouded their memories. Haddad, the family’s lawyer, challenged Lewinski at a lengthy deposition and said the witness wound up admitting that his confusion-under-stress theory would apply equally to the officers who fired the fatal shots.

The city settled the suit for $3.5 million.

Lewinski is “charming,” Haddad said in a recent interview, but “his opinions can be pretty flaky.”

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko

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SF Chronicle, Tuesday, January 7, 2014

New accusations against Santa Rosa deputy who shot boy

Henry K. Lee

SANTA ROSA — The Sonoma County sheriff’s deputy who shot and killed a 13-year-old boy after mistaking the youth’s replica gun for an assault rifle has a history of excessive force and questionable judgment, the teenager’s family said Tuesday in an amended lawsuit.

Deputy Erick Gelhaus had been involved in several controversial incidents long before he encountered and shot dead eighth-grader Andy Lopez in October, the suit said.

In 1996, Gelhaus pointed his gun at a woman “carrying her young son” after she had called for help in connection with a dispute with a neighbor, the suit said. “He chased her around her vehicle, causing her great fear and anxiety,” the complaint said.

Around that same year, Gelhaus and his partner were accused of falsifying police reports in a domestic violence matter, the suit said. The other deputy, whose name wasn’t released, was fired, according to the suit.

The suit also cites an incident in August, two months before the teenager was killed, in which Gelhaus allegedly pulled a gun on motorist Jeffrey Westbrook two times during a traffic stop on Highway 101 in Cotati. Westbrook told The Chronicle that the interaction troubled him so much that he recalled asking the deputy at one point, “Sir, is there something wrong with you?”

Sheriff’s officials “were long aware of the propensity of defendant Gelhaus to recklessly draw his firearm and to use excessive force,” said the suit, which the family first filed in November. The new allegations were added to the suit Tuesday.

Sheriff’s officials have not responded to the fresh allegations in court.

On Oct. 22, Gelhaus and a deputy he was training pulled up behind Andy, who was holding what turned out to be a replica AK-47 pellet gun in his left hand near his home outside Santa Rosa. A witness heard Gelhaus yell at the boy twice to drop the weapon, police said. Gelhaus has told investigators that he fired when the boy turned and the barrel of the rifle rose toward the deputies, he said.

An attorney for Gelhaus has said that the deputy “absolutely believed it was a real AK-47 and absolutely feared for his life.”

Gelhaus, an Iraq War veteran and frequent contributor to law enforcement magazines and online forums in which he promotes officer safety, “instructed and advised others on the use of questionable tactics, including recommendations as to how an officer must respond to justify shooting a kid with a toy gun,” the suit said.

After shooting the boy, Gelhaus deleted his online comments “in an effort to conceal his beliefs,” the suit said.

Gelhaus had not previously not fired on anyone in his 24 years with the Sheriff’s Office, where he has served as a field training officer for new recruits and trains colleagues to shoot at the department’s gun range. But the suit cites an incident in 1995 in which he accidentally shot himself in the leg while on duty, reportedly while holstering a gun.

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