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November 19, 2002

Host: Michael Grant
Topics:
KAET Poll offers a post-election analysis of why Arizonans voted the way they did;
Investigating police-involved shootings
In-Studio Guests:
Dr. Bruce Merrill, Director of the KAET-ASU Poll;
Tom Hammarstrom, Executive Director of the Arizona Peace Officers Standards and Training Board;
Nicholas Hentoff, an attorney experienced in use-of-force cases; David Brewster, retired Executive Chief of the Phoenix Police Department and former Chair of Phoenix's Use of Force Board

>> Cary: Tonight on "Horizon," a closer look at why people voted the way they did in this year's election. The focus of the latest KAET-poll. Plus, can we trust police to investigate shootings involving law enforcement? Or is there a better way to look into police-involved shootings? Good evening, I'm Cary Pfeffer in for Michael Grant. We know who won the election for Governor. Tonight we'll examine in more detail why Janet Napolitano beat Matt Salmon. That analysis will come from the results of the latest KAET Walter Cronkite School of Journalism and Mass Communication poll. The poll of 768 registered Arizona voters was conducted November 14th through the 17th and has a sampling error of plus or minus 3.5%. Here are the results of the poll.

>> Reporter: 49% of those surveyed voted for Napolitano, 45% for Salmon, a higher margin for Napolitano than she actually received in the election. In our poll, Napolitano narrowly carried Maricopa County, 49% to 47%, unlike election results. And like in the election, she heavily carried Pima county, 57% to 33%. 24% of conservatives voted for her. 71% for Salmon, but she overwhelmingly took moderate voters, 65% to 27% and liberal voters, 75% to 20%. As in the elections, women favored Napolitano, 56% to 39% in our poll, and men favored Salmon, 49% to %42. 78% of Hispanics voted for Napolitano, compared to 16% for Salmon, while the Governor-Elect took 50% of the Anglo vote versus 43% for Salmon. The number one reason why voters supported Napolitano was because they considered her a better candidate, thought she made a better impression or because of her campaign. The number one reason voters cast their ballots for Salmon is because he was a Republican, coming in second was because he was better candidate, made a better impression or because of his campaign. Those surveyed were asked what was the number one issue that Napolitano should work on when she takes office, 41% said funding state government and balancing the budget. Up next at 37% was funding and supporting education and teachers. After that it fell dramatically to getting the economy moving at 8%, with other issues barely registering. And when it comes to support for raising taxes, that's a dead heat. 44% support more taxes to balance the state budget. 45% are against. 11% don't know.

>> Cary: Here now to discuss the results is Dr. Bruce Merrill, the director of the KAET-ASU poll. Let's talk first, Bruce, about the numbers that I thought were very, very interesting, the idea that people voted for Janet Napolitano because they felt she was a better candidate, where the people who voted for Matt Salmon in large numbers were voting because he was the Republican. It seems to say that you have to have more than just that "R" behind your name. You've really got to make your case.

>> Bruce Merril: That's true, but before we begin, let me say, since Mike and I go way back, it's good to have a professional here.

>> Cary: He's going to hear about that.

>> Bruce: He's going to hear about that. Welcome.

>> Cary: Thank you.

>> Bruce: Yeah, I think it's pretty clear that what happened in this campaign is that Janet Napolitano ran a better campaign. The people we interviewed told us at that point. They felt she presented better and that the campaign was better, and I think it was a more focused campaign, and it dealt with the issues a little bit more than Matt Salmon's campaign did. In my opinion, Matt Salmon should have run a more traditional Republican campaign. He should have forgotten that Janet Napolitano even existed. He should have run on traditional Republican issues and focused on those issues. Sometimes we forget that Matt was a congressman in one congressional district, only a sixth of the state. I think part of the problem was that not very many people knew about Matt and they needed to give him that information more.

>> Cary: He needed to make his case to the full state and didn't thoroughly do that the way he needed to, because when you look at the national results in elections all over the country, and with the president visiting here twice, it should have been a much easier case for somebody like Matt Salmon in a state like Arizona.

>> Bruce: That's true. Basically there's more Republicans. They vote in a higher percentage than Democrats do. I think one of the things you don't see in the media is that you have to give credit to the Democratic party organization. Mr. Peterson, their chair, put in over $2 million of his own money. A lot of that money went to get-out-the-vote activities and frankly in the 30 years I've been doing campaigns here in Arizona, this is the first time that I've really seen the Democrats deliver their base vote to the polls. They did an unusually good job. And Matt would have won, frankly, had they not do that.

>> Cary: It was a matter of making that commitment and doing it in a way that hadn't been done before, as far as you've seen, anyway.

>> Bruce: Absolutely. That doesn't show too much in the polls and things. >> Cary: Doesn't get that much discussion.

>> Bruce: In my opinion, the biggest reason that Janet Napolitano is Governor-Elect is the activities of the Democratic party.

>> Cary: Getting that vote out. Now, let's talk about what Governor-Elect Napolitano can look forward to. And there's a mixed bag there. Obviously, she wins the job, but at the same time major, major concerns about the budget, and then in the poll, people are also saying, but we also are concerned and want to see the full support of education, and those two, obviously, are going to be major points of contention because the money has to support the education process.

>> Bruce: Well, plus, Cary, as the poll points out, there is only a couple of demographic differences on the tax issues. Republicans are against it and Democrats are for it. And being a Democratic Governor working with a conservative Republican legislature that's going to be against it, that's going to be her challenge. There is no question about it. How she can finesse that situation will largely determine her success, but remember the poll results also showed that there's only two major issues that the people are really focused on right now in terms of wanting her to do something. One is balancing the budget and funding government, but the other is education. Almost as many people said education is our highest priority. That's a big issue in Arizona.

>> Cary: And knowing these numbers and looking at these polling numbers, like I'm sure the Governer-Elect is and her people, I would assume they are trying to figure out a way to craft a policy that sort of tries to balance that, understands that just the discussion of a tax increase or any form of that is going to be a hot issue, but at the same time knowing that people have these strong priorities, strong feelings.

>> Bruce: There is no question. But if you go back and look when Janet Napolitano was the only Democrat in the fab 5, she handled herself very well and proved that she could work in an environment where she was the only Democrat. My feeling is she'll do surprisingly well. She's very good with people. She understands these numbers, and I think she'll do better than most people realize.

>> Cary: It'll be an exciting, interesting time over the next few months, and obviously in the next couple of years for the new Governor, and you'll be one of the people who will' be watching.

>> Bruce: Yeah, well, we'll start measuring her success. She might start getting mad at us pretty soon.

>> Cary: That may happen. Thanks very much, Dr. Bruce Merrill, always great to talk with you.

>>> Cary: Recent officer-involved shootings in the Valley have raised the question whether police should be investigating their own. In a moment I'll talk to experts about whether third party investigations are needed and what else can be done to protect the credibility of such investigations, but first, Paul Atkinson looks at a police shooting in Apache Junction where questions over police thoroughness of an investigation have been raised.

>> Reha Altug: The police officer was like this with his gun. When I first saw him, I was on the other side of the counter.

>> Reporter: Reha Altug called police April 20th, 2001. He asked for help in preventing his son, who had taken a tranquilzer, from hurting himself with a bread knife. He demonstrates what happened when an Apache Junction police officer entered his home and saw his son holding a knife to his own arm.

>> Reha: All he heard is from there, police officer said, drop it, drop it, drop it, and then simultaneously, shot three times. No distance, no time between those three shots. Three shots simultaneously, bang, bang, bang! And my son fell right here by the sink.

>> Reporter: Altug asked the Department of Public Safety, not Apache police, to investigate the shooting of his 16-year-old son Ali. Eight months later, the investigation cleared the officer of any wrongdoing. Based on the investigation, the Pinal County Attorney's Office declined to press charges.

>> Reha: I could not believe what happened during that night, and here we are trying to get the truth and then these people are -- we're hoping they will be coming up with the truth, they are coming back to us with a botched investigation.

>> Reporter: Tim Casey is the family's attorney.

>> Tim Casey: The purported reason for doing an investigation is to determine what was the cause of the shooting. Basically what we had in this was a fact-gathering inquiry, and that fact gathering wasn't complete.

>> Woody Haywood: Hi, my name is Sergeant Woody Haywood of the Apache Junction Police Department.

>> Reporter: This is the officer involved in the shooting, Sgt. Robert Woody Haywood. Haywood was on a medication used to treat panic attacks. A test would reveale later that Haywood hadn't taken it. Casey says that's something investigators failed to thoroughly look into.

>> Tim Casey: The DPS investigators were told by the officer that he had been prescribed medication by a psychiatrist for two years. They were told what the medication was for. The investigating officer had experience in particular types of medications. That was never tested, and this was supposedly an investigation to determine what happened. If you have an officer who may be impaired by alcohol, drugs, whether they are medication or street drugs, that is something that needs to be followed through. It wasn't followed through.

>> Reporter: The DPS criminal investigation contained a few inches of documents. Investigations for the civil trial, a lot more. Just released last week, the documents reveal that Haywood had been kicked off the S.W.A.T. team for fear of the safety of other officers and civilians. Just 10 days before the shooting, the S.W.A.T. team's physician James Walker said this in a deposition over his removal from the S.W.A.T. team. I don't want to see anybody ruined, but I'll tell you what, I don't think the man ought to be carrying a weapon. I think he is unstable and I've told other people that. Statements like this helped persuade the city of Apache Junction to settle a civil lawsuit for $1.65 million.

>> Mrs. Altug: They didn't ask any of the questions. They didn't do any of the things they should have done.

>> Tim Casey: It seems to me elemental that some of the things they did not follow up on were deserving of follow-up.

>> Reporter: Lt. Jack Lane led the DPS Special Investigations Unit that looked into the shooting of 16-year-old Ali Altug.

>> Jack Lane: If they are saying that there are items that were missed, I would be more than happy to entertain -- I'm sure DPS would be more than happy to entertain, saying if you know what they are, tell us what they are, because if it's just these items, I've got an answer for every one of these, and I haven't seen anything, yet, that's indicated to me that we did a less than good investigation. I think this was a very thorough investigation.

>> Reporter: Lane says investigators didn't overlook the medication he would have been prescribed.

>> Jack Lane: The detective doing the interview was a drug recognition expert. He is a trained investigator or we wouldn't have him handle this type of case. Bottom line is he did pursue it in the investigative interview and determined it was for therapeutic reasons. He had been taking the drug for over 2 years, but through that detective's observations, he saw no indications of any impairment at all on the part of Sergeant Haywood. Had there been indications of impairment, then we would have pursued that through a court order and collected specimens to determine what that impairment was caused by, but we had no probable cause to pursue that type of a court order.

>> Reporter: Lane points out investigators saw no need to delve into Haywood's personnel record where civil investigators learned of Haywood's removal of the S.W.A.T. team.

>> Reporter: Did you know he had been kicked off the S.W.A.T. team?

>> Jack Lane: No, we were never told any of that information, and to be honest with you, that would taint the investigation to another direction if you look at it, if they were telling us things like that. Those are past practices. People have things that happen to them over a long period of time. Sometimes officers make mistakes. That doesn't necessarily mean in this particular instance that anyone did anything wrong. Our job was to collect the facts of what occurred that night during that time frame, not what happened three months before.

>> Reporter: Lane says the Pinal County Attorney's Office can always reopen the investigation.

>> Jack Lane: We always have that check and balance of a county attorney that -- if they want further investigation done on a case, all the county attorney does is kick it back, send it back to us and say we want additionals done in this area. We want this question asked or this other issue looked at, and in my experience, that has happened very little with our Special Investigations Unit.

>> Reporter: "Horizon" contacted the Pinal County Attorney's Office about the investigation and new information. The county attorney Carter Olson responded, "I caution that investigative differences are to be expected, and differences do not necessarily mean that one investigation was substandard. However, if new information is now available, I do want to review it, and I intend to reconsider my earlier decision in light of any new facts. For this reason, yesterday, I sent a letter to both the City and Altug's attorneys, requesting copies of nonprivileged discovery."

>> Cary: And the Apache Junction city council is set to vote tonight on whether to launch an independent audit of police management practices. The decision follows recent information concerning the officer-involved shooting.

>>> Now, joining me, Tom Hammarstrom, the Executive Director of the Arizona Peace Officers Standards and Training Board. Also here is Nicholas Hentoff, 12 an attorney experienced in use-of-force cases. And David Brewster, retired Executive Chief of the Phoenix Police Department and former chair of the city's Use of Force Board. Tom, let me begin with you, and first of all, so that we understand your role, you act as the licensing board for peace officers in the state?

>> Tom Hammarstrom: Yes.

>> Cary: They have to go through you before they ever become a Phoenix police officer or an Apache Junction police officer.

>> Tom: That's correct. We operate not unlike the Board of Medical Examiners, for example, in their relationship with doctors.

>> Cary: Let's talk about the process, because we need to lay groundwork. There is a shooting involving an officer. There are basically oftentimes two investigation that happen simultaneously.

>> Tom: That's correct. There is a criminal investigation that is just that. It's the investigation of a potential crime. The people involved in that are entitled to Constitutional protections, and police officers don't yield those constitutional rights in those instances.

>> Cary: They don't have to say everything about what happened?

>> Tom: That's right. They have their rights as citizens. But, because of their position of trust, and the importance of these positions, there is a parallel investigation and that's an administrative investigation that is about the use of authority, the position of trust, and so that information can be obtained without jeopardizing the criminal investigation. There is a process by which officers can be actually compelled to answer questions to participate in the investigation and to be very forthcoming about what has gone on, and they can do that without endangering or yielding their rights.

>> Cary: In that that situation, you have these two investigations, and that internal investigation isn't necessarily handled by a third party, sometimes it is, other times it's not; correct?

>> Tom: Well, I think there are probably a variety of approaches. There are a number of agencies. There are 168 police agencies, law enforcement agencies in Arizona. Not all of them are resourced to --

>> Cary: To be able to handle it.

>> Tom: That's right, not resourced to have homicide investigators in some instances, and do not have -- so it's not unusual to invite another agency, sometimes the Department of Public Safety, to conduct the administrative investigation as well.

>> Cary: Nicholas Hentoff, should there always be a third-party investigation? What's your take and your familiarity with use-of-force cases?

>> Nicholas Hentoff: What I've seen in use-of-force cases that I've reviewed, and those are cases that have come to the point where there is a lawsuit, there's been a shooting. You get the officer's personnel file, and when you go through the officer's personnel file, in almost every case that I've seen, there is a history there. There is a history of misuse of force that has essentially -- I don't want to say been covered up, but at least it's been overlooked, and the officer has been allowed to remain on the job. He's been allowed to carry a gun, and it's only until something tragic happens that you can look back and see that there is really a pattern and a history. My experience has been that there is a perception in the law enforcement culture that if an individual, such as a civilian, has not been in the line of fire, has not actually experienced that life or death decision that has to be made when you decide to use deadly force or not --

>> Cary: They can't know.

>> Nicholas: exactly. They can't know. The corollary of that is it creates a tendency in law enforcement, in my opinion, for them to not want to second guess use-of-force issues. They tend to not want to Monday morning quarterback a decision where an officer had to make a life or death decision. There is a stark difference when you look at the actions that POST has taken with respect to police misconduct. They have a zero tolerance policy when it comes to stealing. An officer can steal any amount of property that's worth any amount of money and you can guarantee that the certification will be immediately revoked. It's the same thing with smoking marijuana. You smoke one marijuana cigarette, you can almost guarantee that it's --

>> Cary: But you are saying it's a different matter when somebody pulls out a gun.

>> Nicholas: I think that there is more of a likelihood of not wanting to make the tough decision of not wanting to second guess what that officer had to go through in that very difficult situation.

>> Cary: Let me talk to David Brewster about this. In your opinion, does there need to be on a regular basis, complete third-party oversight when there is these situations.

>> David Brewster: don't think on a regular basis. Perhaps on occasion in certain agencies -- it can happen in any agency. There might be a need to go outside, but as a routine matter, I would say no.

>> Cary: When people, for example, in the Apache Junction story that we just saw, and there were details that came out that were not necessarily made public previous to that, details about personnel records and that sort of thing, that's -- it seems, like, when those credibility questions come into play, and you said on shooting boards before, that has to concern you when those kinds of questions come up, when those kind of questions come up and the credibility of these investigations is questioned.

>> David: As a police executive, I would be concerned on any investigation, like Tom said, you have a criminal and internal investigation. If there were questions of any nature in these investigations, and when we present the -- and my job on the use-of-force review board as the chairman was to present the internal investigation, have the investigation presented to the panel, which included citizens, and I understand part of what Nick is saying, and I agree with it, is that citizens sometimes have a different viewpoint than the police do, but I think it's important that every piece of information you can gather is included in the report and then presented to whomever is going to review that report.

>> Cary: And the question sometimes is, is every piece of information available. Talk a little bit about that process.

>> Tom: Well, I'd like to back up just a little bit and kind of remind everyone that it's almost impossible in these events to exclude the agency from the investigative process. In every instance, the first responding officers are going to be members of that department. They are going to be associated with the officer. They are going to have feelings about the officer who is involved, and I don't think that's a feature of police culture so much as it is a feature of human relationships and human interaction. But the fact is they must 17 respond and they must do something. There are people who are injured that need to be treated and transported. There is a crime scene that needs to be protected and the stuff can't wait. It can't wait for the neutral third party. There does come a time when it is appropriate for perhaps some third party, a more neutral investigative team to take over, but it has to be understood that it's not going to be possible to completely isolate this event from the agency.

>> Nicholas: I'll tell you one thing that concerns me. Under the statute that enables POST and gives them their authority to do what they do with respect to police certification, there is no mandatory reporting requirement if a department finds that an officer has not -- has in some way violated the different sets of qualifications that they need in order to retain their certification. The only time that they are required to notify POST of problems with an officer, and I mean, mandatorily required to notify POST is when that officer is terminated, then they are required to notify POST that the officer has left service and the reasons for him leaving service. But for instance, in this example, in Apache Junction, the fact that a doctor made a determination that this officer shouldn't have carried a weapon, that wasn't passed on, and there was a short period of time between the determination and the shooting, but I can almost guarantee you that it wouldn't have been passed on, and one of the reasons why is because there is not a mandatory reporting requirement.

>> Cary: Tom, your response to that?

>> Tom: That's correct. There is not a mandatory requirement.

>> Cary: Should there be?

>> Tom: The Arizona POST Board is a licensing agency for the individual police officer. In order for POST to respond to each instance of misconduct that is handled in a normal chain of organizational administration, it's probably not --

>> Cary: That would be a lot of paperwork, but it seems like what's being suggested is there should be some threshold where POST would be notified and therefore a potential red light would go on.

>> Tom: I would agree, there are circumstances that should be reported and investigated perhaps by POST, and that there are not requirements in all circumstances that that happen at this time.

>> Nicholas: Do you know for every shooting that occurs in Maricopa County, a Maricopa County from the Maricopa County Attorney's Office goes out to the scene and is there with the police officers at the scene of the shooting? And I know that there are budget constraints in place, but I think there should be a system set up where the Attorney General's Office, for instance, which serves POST as their legal advisor, maybe could have a team of attorneys that are scheduled to go out to a police shooting in a metropolitan area and be present so that there could be somebody representing POST on the scene of the shooting. That might be a duplication, it might be consolidated together so that you would have a single entity of investigators that was either under POST jurisdiction or under the Arizona Attorney General's jurisdiction. It could be run out of the Department of Public Safety, but I think there has to be some common unified structure for investigating these kinds of cases and making sure the information gets to POST and it's not just up to the department.

>> Cary: Making the decisions about their own.

>> Nicholas: Exactly.

>> Cary: David Brewster, talk about the situation that individual police departments could find themselves in. You were familiar with cases where the Phoenix Police Department decided to fire someone and then there is another structure in place that actually returned some of those officers to service?

>> David: Sure, there is a -- you know, people call for a civilian review board. In essence, I would argue that Phoenix and many other agencies and cities have it. In our case it's the Civil Service Board. These are good folks appointed by the city council. They may or may not have any experience in investigative stuff, but these are just rational, normal folks, and cases that are appealed to them, use-of-force cases, if found out of policy go to a disciplinary review board, the officer is terminated and that's appealed to the Civil Service Board. Their task is to decide whether the department was too harsh or whether the department's actions were appropriate. And in some cases, they decide that the department's actions were too much, and those people may be sent back to the police department.

>> Cary: And then what -- I mean, it puts the police department into a difficult situation.

>> David: To some degree. I mean, I have no fault with the officer. They are -- they are using the legal channels that are available to them and certainly Tom's folks will get involved. The officer was terminated, the case is going to be submitted to POST --

>> Cary: And reviewed there.

>> David: And reviewed there. There are lots of areas of review that goes on. One of the things I would like to put in context here, we're talking about the number of cases where the officer has been involved in a shooting. There are countless cases, things that happen that happen every day, where the officer could have shot, could have used force, where the officer didn't. The officer either had other tools available or used a restraint or got lucky, but there is a lot of circumstances where use of force could have been used and it wasn't.

>> Nicholas: Is that reported? Is that reported to POST if the person is terminated but the termination is reversed by the civilian -- by the Civil Service Board?

>> Tom: Yes. And additionally, I would point out that POST is obligated to investigate incidences of police misconduct that come to our attention, with or without a report by an agency head. We're alert to the newspapers and the media --

>> Nicholas: What about civilian complaints?

>> Tom: We respond to civilian complaints as well.

>> Cary: Obviously, this is something that's going to get a lot of attention. A couple of high profile cases in the last few months here are bringing a lot more attention to this particular issue, and these kinds of questions are likely to get more attention. We appreciate your time and appreciate the insights that you're able to bring to this. I hope it's not something that is forgotten about. It seems unlikely. Thank you very much.

>>> Tomorrow on "Horizon," we'll take you to the oral arguments in the landmark case of State Versus Ring where the Arizona Supreme Court will decide whether 29 death row inmates should be resentenced.

>>> Then on Thursday, a closer look at the state budget mess. We'll examine why cities are worried over losing state-shared revenues to budget cutbacks. You can expect that can be, again, the topic of many, many discussions here on "Horizon." Thanks very much for watching. Michael Grant will be returning later on in the week. I'm Cary Pfeffer. Have a good evening.