Judge Rules Rampart Ex-Officer Must Face Trial

Thursday, February 21, 2002

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Judge Rules Rampart Ex-Officer Must Face Trial

By KIMBERLY EDDS, Staff Writer

A judge ruled yesterday that former LAPD Rampart officer Ethan Cohan must face trial on criminal charges that he beat a gang member, rejecting a defense bid to exclude testimony from three ex-officers who said they participated in a cover-up.

The defense claimed that the officers’ testimony was “tainted” because they saw Cohan’s compelled statement on the alleged beating. But Los Angeles Superior Court Judge William Chidsey Jr. rejected the argument and set a March 11 arraignment for Cohan.

Cohan faces five felony counts in connection with the alleged beating of former 18th Street Gang member Gabriel Aguirre on March 26, 1998. Cohan is charged with assault with a deadly weapon, assault under the color of authority, perjury, filing a false police report and conspiracy. If convicted on all counts, Cohan faces a maximum of five years and two months in state prison.

Defense lawyer Harland Braun argued that the charges should be thrown out because the prosecution’s case relies heavily on the testimony of three former Rampart CRASH officers who were given a statement that Cohan was forced to make as part of an internal investigation by the Los Angeles Police Department. Since Cohan could not assert a Fifth Amendment right not to give evidence against himself, the compelled statement cannot be used as part of a criminal proceeding against him.

But officers involved in LAPD Board of Rights disciplinary hearings are given copies of such compelled statements made by other involved officers so they can prepare their defense, Sgt. Ray Garvin said.

With Cohan’s statement in hand, Braun said, three officers—Manuel Chavez, Shawn Gomez, and Camerino Mesina—concocted a story that purposefully contradicted Cohan’s account of what happened, then took the statement to prosecutors in the hope of cutting a deal.

The District Attorney’s Office granted Mesina immunity and never charged him in the incident.

Gomez pled no contest to filing a false police report. He reached a deal with prosecutors that will reduce his charge to a misdemeanor, put him on probation and require that he perform community service. He is to be sentenced after the Cohan trial concludes.

Chavez pled no contest to assault under the color of authority. He is set to be sentenced Monday.

Because the officers were able to benefit from knowing what Cohan was going to say based on his compelled statement, Cohan was left in a worse position than he would have been had he not given the statement, Braun argued.

Chidsey agreed that Cohan should not be in a worse position because he gave a statement but he ruled that the officers’ testimony was based on their own observations and not on what they may have read in Cohan’s statement.

“The prosecution’s case is based on the independent observation of these officers,” Chidsey said.

Braun warned that Chidsey’s ruling would have serious implications for officers in the future.

“Based on this court’s ruling, you gotta be crazy as an officer to ever give a statement, no matter what they say to you,” Braun said.

Officers who give compelled statements in an internal investigation are given what is known as a Lybarger admonishment—a promise that their statement cannot be used against them in a criminal proceeding—but Braun contended that the promise made to Cohan was broken.

Braun said he plans to ask for the case to be dismissed because the prosecution did not prove that Cohan’s statement did not taint the witnesses.If that motion is denied, Braun said, he will seek a hearing that would extensively examine whether Cohan’s statement was used directly or indirectly against him.

Gomez, Chavez and Mesina, along with former officer Rafael Perez, were with Cohan when they went to an abandoned apartment at 450 S. Witmer to arrest Aguirre in connection with the stabbing of a man.

According to official police reports written by Cohan, Aguirre kicked and hit the officers in an attempt to escape, but Gomez, Chavez and Mesina testified at the preliminary hearing they were never attacked by Aguirre and they never saw Aguirre attack any of the other officers.

Mesina and Gomez also testified that Perez threw a handcuffed Aguirre into a wall and Mesina said he witnessed Perez kicking Aguirre while Cohan beat him in the back “either with a flashlight or his fist.”

The case first came to light when Perez told LAPD investigators that he and other officers beat up Aguirre and then conspired to cover it up. A February 2000 story in the Daily News revealed Perez’s accusations and reported the now-disgraced officer named Cohan, Chavez, Gomez and Mesina as his co-conspirators.

Cohan was fired from the LAPD in 1999 because department officials said they believed he lied about his knowledge of the alleged beating of another gang member by another officer. Cohan appealed the decision and his second Board of Rights hearing again held that he be terminated.

Deputy District Attorney Rune Sodonis, who is assigned to the office’s “clean-up team,” said there are institutional problems with the way the LAPD conducts its investigations because the same investigators who pursue charges of administrative misconduct also pursue charges of criminal misconduct.

That means that investigators who take compelled statements for internal investigations and are unable to use them in criminal proceedings may taint the criminal process by bringing with them their knowledge of immune documents.

In a May 1, 2000 letter, Deputy District Attorney Richard Rosenthal told two LAPD commanders the way the LAPD was handling its internal investigation on the Aguirre incident could prevent prosecutors from using Aguirre as a witness in a criminal trial.

“Information derived from compelled statements may not be used in any way to further a criminal investigation,” Rosenthal wrote.