Their Grand Jury, Our Grand Fury

Sep. 7, 2005

To: George Kennedy, Santa Clara County District Attorney

Re: Understanding Police Killings: The Secret Case of Samuel Martinez

For nothing is secret, that shall not be made manifest; neither any thing hid, that shall not be known and come abroad.

-- Luke 8:17

A Mercury News article (Apr. 9, 2005) attributes to Chief Assistant District Attorney Karyn Sinunu the following justification for secret hearings into the killing of Eric Kleemeyer :

"In very exceptional cases we have joined with the grand jury foreperson to open the grand jury hearing. In this case it does not seem appropriate for open grand jury because from all the facts that we've reviewed ... there has not been a public misunderstanding of this."

We don't know what “facts” were reviewed to determine the need for secrecy (because they're secret too), but if Ms. Sinunu tells us those facts indicate that the public's understanding of that killing is correct, then she must be confirming our understanding that Santa Clara police Craig Middlekauff, Jeff Vaden, and Dawn Marines murdered the unarmed 22-year-old Eric Kleemeyer in cold blood and concocted an implausible “feared for our lives” defense - that the District Attorney's office then dutifully rubber-stamped, thus helping to minimize the liability of the city while ensuring that fear of legal consequences will not place a damper on the current boom in extra-judicial executions by police.

Presumably, the DA's office has now determined that the public does not misunderstand Patrick Guire's killing of Samuel Martinez. Assistant District Attorney Dave Tomkins tells us “that the facts surrounding Mr. Martinez's death do not warrant an open grand jury”. Again we don't know what the “facts” are because, in this maniacal Kafka-esque convolution, the facts used to justify secrecy are secret too.

But we do know this with certainty: the official story handed down from the police to the public is full of holes, does not explain why a call for help should leave an unarmed young father of two dead, and thus further fans the flames of rage that are growing rapidly throughout a public fed up with a criminal justice system that's utterly devoid of justice and thoroughly criminal.

How is the public to understand this killing when we have not been given any official account? In the past, the official account of a so-called “officer-involved shooting” was posted as a press release on the SJPD website. In fact, that website does contain a press release on the recent in-custody death of Brian Patrick O'Neill. Yet there is no press release on the killing of Samuel Martinez. It seems as if SJPD has already deemed their killing of Mr. Martinez as routine: not significant enough to warrant public mention.

How can the public understand this killing from the multiple, conflicting accounts given in the media?

“Martinez then allegedly charged at the officer, who deployed two Taser gun rounds with no apparent effect. During the ensuing struggle, Martinez allegedly grabbed the officer around his waist and was able to take the officer's baton, according to Tepoorten. Another attempt to subdue the suspect with the Taser gun appeared to have been successful, but Martinez quickly recovered and allegedly advanced towards the officer with the baton in hand. The officer then fired three shots, all of which are believed to have struck Martinez.”

May 26, 2005, NBC 11

In the above account, SJPD Officer Gina Tepoorten reports that Samuel Martinez:

1. Charged at Guire

2. Was hit twice with Taser

3. Then grabbed Guire's waist and took Guire's baton

4. Was hit with Taser again for a total of 3 shocks

5. Then advanced toward Guire with the baton

6. Was then killed by 3 shots from Guire

But in the Mercury News account the same Gina Tepoorten tells a different story:

“...Martinez charged at Guire, who then drew his Taser gun and fired it twice, striking Martinez at close range. Neither stun appeared to have an effect on Martinez, who subsequently grabbed the officer around his waist, she said.

So Guire reportedly fired his Taser gun twice more and appeared to momentarily stun Martinez. But soon after, Martinez grabbed the officer's baton and charged at the officer, according to [SJPD Officer Gina] Tepoorten. At that point, Tepoorten said, the Guire drew his gun and fired it multiple times, striking Martinez.“

May 27 2005, Mercury News

So now we read that Samuel Martinez:

1. Charged at Guire

2. Was then hit twice with Taser (at close range)

3. Then grabbed Guire's waist

4. Was hit with Taser twice more, for a total of 4 shocks

5. Then took Guire's baton and charged at Guire

6. Was then killed by multiple shots (no specific number) from Guire

Still another account was reported by SJPD Officer Enrique Garcia in Bay City News Wire:

“Guire deployed a Taser round twice with no apparent effect, as the suspect charged and grabbed him around the waist. A third Taser round seemed to have momentarily stunned Martinez, however he was able to grab the officer's baton. Guire then fired three shots at Martinez, who was approaching him with the baton in a threatening manner, according to Garcia.”

May 28 2005 CBS 5 Bay City News Wire

Now we're told that Samuel Martinez:

1. Was hit twice with Taser while he charged and grabbed Guire's waist

2. Was hit with Taser again for a total of 3 shocks

3. Was then killed by 3 shots from Guire as he advanced toward Guire with the baton (in a threatening manner)

So whom do we believe? Where can the public go to get “the facts surrounding Mr. Martinez's death”?

Without a press release to authoritatively resolve these discrepancies in the account, the public is unable to determine if the source of the discrepancies is the media or the police, and so it should not be surprising that the public now harbors the same suspicions any objective investigator would have when faced with conflicting stories from a killer.

But the public has little or no hope of an objective investigation from a department that rushed to defend the killer before the investigation began. With the usual closed grand jury, we will never get the answers we seek to these questions:

• Are there any witnesses, or do we only have the killer's account? Is there any physical evidence to help us understand what happened that night? What objective evidence is there to support Guire's stated belief that his safety was threatened, if he was not injured at all “during the ensuing struggle”? Or is it sufficient for police to merely chant the “feared for my life” mantra to ward off prosecution?

• With the Taser range limited to 21feet at most, and a default firing time of 5 seconds, how did Guire have time to Taser Samuel Martinez twice if he was “charging”, as claimed? All of the accounts tell of a struggle before the shooting, but none mentioned Guire issuing any warnings that he was escalating to deadly force. Though warnings may not be required, if a killing is not a “split-second decision” as this does not appear to be, how do police justify killing an unarmed man without warning?

• Is there a Taser policy and, if so, what is it? Did Guire follow Taser policy? Why is discussion of Taser failures being kept secret? Johnnie Nakao, Zaim Bojcic, and now Samuel Martinez: 3 people shot dead in less than 10 months, and police claim Taser failure in each case. Yet, grand jury hearings were closed in all these cases, so the public doesn't know what happened. If Tasers are failing as claimed, leading police to lethal force (that has sharply increased, not decreased, since full Taser deployment), why are they still being used?

• While police are not required to retreat, they are also not prohibited from retreating. Retreat can prevent the possibility of close combat, which brings increased risk that police weapons can be taken away. Retreat can save a life while backup is on the way. Did Guire try to retreat from the threat he stated he believed he was faced with? If not, why not?

• Guire must have assumed Mr. Martinez was unarmed – otherwise he would not have used Taser, but went straight for his gun. He also must have assumed that he could control the situation alone, otherwise he would have waited for backup. So, if we take Guire's story to be true, it says he shot dead a man he knew was unarmed, because he overestimated his control. For those of us in the lay public, that alone clearly raises the possibility of at least criminally negligent homicide, resulting from recklessness. Why wasn't Guire directly charged with some flavor of homicide – as any other member of the public would be if his/her reckless fighting led to a killing?

After we learned how Chad Marshall killed Bich Cau Tran without justification yet still walked free, and Michael Kan and Craig Lee brutally tortured Albert Hopkins for sitting in his parked car under a “suspicious-looking tree” and were rewarded with a long paid vacation that cost them only $250 each, the public doesn't trust police, the DA, or courts. Rapidly shrinking public trust means rapidly shrinking public support. Just ask Deputy DA Peter Waite, who watched his jury pool rapidly shrink as jurors were dismissed for expressing strong distrust of police. Our communities are under attack from drug dealing and armed youths emulating the violence they see glorified in this society. Yet, instead of any meaningful efforts to deal with the root causes of the deterioration of hope for the next generation, our society continues to amplify the violence, and law enforcement directs it against those who are neither drug dealers nor gangsters. Because while police continue to stockpile ever larger arsenals, the facts show that police and DA direct their lethal attacks only on those least able to defend themselves. With all the shootings in the community, who are police killing? Gustavo Soto Mesa, Bich Cau Tran, Rudy Cardenas, Zaim Bojcic, Eric Kleemeyer, and now Samuel Martinez – all unarmed.

Take heed therefore how ye hear: for whosoever hath, to him shall be given; and whosoever hath not, from him shall be taken even that which he seemeth to have.

-- Luke 8:18

I am not unaware of the risks of acting as messenger in a climate where simply pointing out the likely result of current policies may be viewed as “terrorist threats”. Yet I'm haunted by the even greater risk of remaining silent when I see that every earnest effort to channel people's rage into constructive engagement within the system is repelled by that system with unbridled arrogance.

You may find it comforting to believe that the conclusions in this message are drawn only by those that take the time to articulate them in long letters to public officials. If so, your comforts will be costly. Young people (particularly those of Hispanic, Asian, and African descent) are getting the message that their lives mean nothing to police, the DA, and the courts. It would be understandable - in fact, logical – for some of them to conclude that under such conditions they have nothing to lose, and can gain advantage, by shooting police before police shoot them. Especially considering that, according to Police Auditor reports, only 26 of the 60 people who ended up shot by SJPD from 1993 through 2004 had firearms. It's clear: mainly the unarmed are being shot.

All the signs clearly show that official disregard of the public's understanding of police killings is pushing San Jose down the path of Cincinnati 2001, Newark and Detroit in 1967, and Watts 1965 – where only one outlet remained for the seething tension resulting from police brutality that always escaped prosecution. How many killers can walk free before San Jose opts for the street justice of Miami 1980 and Los Angeles 1992? What has San Jose learned from the Kerner Commission report that ranked (in descending order of intensity) 12 "deeply held grievances" as the causes of acute urban unrest in 1967 – placing police practices as #1 on their list?

You may find it comforting to believe that such rebellions are restricted to the African-American community and that San Jose (where 93% of the population is of Hispanic, European, or Asian descent) is immune. You would be overlooking the 1991 rebellion against police brutality by the Hispanic community of Mount Pleasant in Washington DC, that left 50 people injured (mostly police) and hundreds of thousands of dollars of damage.

You may calculate the risk as low enough to disregard, and continue to secretly clear police who kill under highly suspicious circumstances, thereby further alienating the public and continuing to fuel their rage, and thus inevitably making Santa Clara County about as attractive an environment for business as Baghdad is.