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11 years for shooting unarmed gangbanger in the back?

Was agent's claim of self-defense defensible?
Tuesday's court drama tells the tale.

By Senior PoliceOne Contributor Chuck Remsberg

A California narcotics agent who faced up to 11 years in prison has been found not guilty of voluntary manslaughter for shooting in the back a fleeing suspect who turned out to be unarmed.

A dramatic turning point in the trial came when an expert on the body movements of suspects in deadly force encounters clashed sharply with a prosecutor who claimed the agent lied about how the shooting occurred.

Drug agent Mike Walker (left) and Force Science expert Dr. Bill Lewinski (right)

During a cross-examination, Deputy DA Lane Liroff emphatically asserted that the suspect could not have turned and pointed what appeared to be a gun while simultaneously running away, as the agent said he did, without falling down.

"That's the most ridiculous thing I've ever heard!" retorted expert witness Dr. Bill Lewinski of the Force Science Research Center at Minnesota State University-Mankato.

As the jury watched and snickered, Lewinski then sprinted for about 30 feet across the courtroom in the "impossible" posture, without stumbling or falling, thereby puncturing a key component of the prosecution's case.

The accused agent, Mike Walker, 34, with the state's elite Bureau of Narcotic Enforcement, was indicted in July, 2004, after he shot and killed Rodolfo "Rudy" Cardenas, an ex-convict and Hispanic prison gang member, in a parking lot in downtown San Jose. The indictment had been doggedly pursued by the Santa Clara County DA's office even though Walker had been absolved of wrongdoing by an investigation by the California Attorney General's office.

The shooting occurred in midday five months earlier when a stakeout team that Walker was part of mistook an uninvolved passing driver, 43-year-old Cardenas, for a wanted parole violator, who was said to be using drugs and possessing guns and to have been accused of murder. When the team attempted to stop Cardenas' SUV so they could question him, he sped away.

Occupying several undercover cars, the team followed in what was described as a "wild, Smokey and the Bandit" pursuit through crowded San Jose streets. The chase ended when Cardenas' vehicle skidded to a stop across the mouth of an alley that flanked a retirement center. The suspect fled down the alleyway on foot and Walker ran after him.

Walker later described Cardenas as running "hunched over" while holding his front waistband. Fearing that the suspect might at some point attempt to ambush him, the agent kept his gun drawn.

The lethal confrontation occurred shortly after Cardenas scaled a cyclone fence at the end of the alley and dropped down into the parking lot. According to Walker, the suspect was continuing to run away, now at a slower "jogging" pace, when he abruptly turned his upper body toward the agent.

Walker said he caught just a glimpse of a dark object in Cardenas' hand, pointed in his direction. Walker took it to be a semiautomatic pistol and in perceived defense of his own life, he said, he fired two bursts from his service handgun.

One of his rounds entered the lower right of Cardenas' back and exited front left. The wounded suspect fought agents who attempted to administer first aid and was pronounced dead later at a nearby hospital. Tests revealed that Cardenas was high on methamphetamine when he was shot.

No gun was found at the scene or on the suspect's body. But near where he fell, a rectangular digital measuring scale of a type commonly used by drug dealers was recovered. This appears to have been the "threatening" object Walker saw Cardenas pointing.

The suspect's estranged wife told investigators that on numerous occasions he had told her that if he was ever stopped again by police, "he would run from them and force them to shoot him" rather than go back to prison as a "three-time loser."

Despite the circumstances, prosecutors refused to accept that Cardenas' death resulted from a righteous shooting. Evidently believing that Walker had shot because he was angry that Cardenas was getting away, Deputy DA Liroff called the agent's version of events a "fabrication," repeatedly labelled him "a cowboy" and a "hot dog," condemned him for "reckless misconduct," likened shooting someone in the back to "Old West" tactics, and charged that other agents had "conspired" to protect him.

When the grand jury returned the indictment for voluntary manslaughter, Walker became the first drug enforcement agent in California ever sent to trial on criminal charges for a killing on duty.

Lewinski, a behavioral psychologist whose scientific studies of the human dynamics involved in armed encounters are regularly reported on the PoliceOne website, was recruited along with others to be part of Walker's defense team by attorney Craig Brown. Lewinski's expertise would allow him, among other things, to confirm that the suspect's wound in the back would have been consistent with him turning to point what Walker thought was a gun while running slowly away from the agent.

Brown, recognized as one of the area's most skillful defense attorneys, also sought Lewinski's research data on the reaction time disadvantage experienced by officers in shooting confrontations and the necessity of sometimes responding to "contextual cues" that may turn out to be mistaken in life-threatening situations.

Lewinski's clash with Liroff came during the two and one-half days he testified as an expert witness during the six-week trial. During cross-examination, while Lewinski was defending the validity of an animated version of the shooting created by Parris Ward, one of the nation's leading animation specialists who is also on the Technical Advisory Board of the Force Science Research Center.

As he had done in persuading the grand jury to indict Walker, Liroff challenged what the agent had claimed was the suspect's body position when he turned and made the threatening gesture that prompted Walker to shoot. He asked Lewinski rhetorically if it wasn't true that a person "cannot possibly run in that position without falling down."

"That's the most ridiculous thing I have ever heard!" Lewinski responded. "Do you want me to demonstrate running in that position?"

No doubt to his ultimate regret, Liroff said yes.

"How fast do you want it?" Lewinski asked.

"Just do it," the prosecutor commanded.

Lewinski then left the witness box and ran in front of the jury box, traveling at what he estimates was two to three times faster than Walker said Cardenas was moving. He did not fall down or even come close.

Liroff then protested that Lewinski had "cross-stepped with your feet."

"Yes, exactly," Lewinski said. "That's how you run in this position." By then some members of the jury were laughing.

Nevertheless, Liroff continued to question Walker's story, and declared in his summation that allowing him to go unpunished for the shooting would be a "slippery slope to hell."

The verdict favorable to Agent Walker was returned last Tuesday morning [Dec. 13] after two days of deliberation by the six-man six-woman jury. In interviews later, jurors commented that Walker was an impressive and credible witness on his own behalf.

As Brown tried to address reporters after the verdict, about two dozen protesters marched outside the courthouse, some bearing photos of Cardenas and screaming, "No justice, no peace!" and "Murderer!"

Prosecutor Liroff told the press, "It's an unfortunate reality that jurors are going to be more indulgent of a police officer."

But Attorney General Bill Lockyer, in a written statement on the verdict, said, "The jury reached the correct verdict. Under the circumstances, Agent Walker acted in accordance with his training and his best judgment of a perceived threat. That is why he was appropriately acquitted."

Civil litigation filed by Rodolfo Cardenas' survivors remains to be settled or tried.

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