Police Protection: Speeding While Silent
To help illustrate the dangers posed by driving at high speeds, a Houston Police Academy lesson plan on driving safety states the following: A 4,200-lb. vehicle — the approximate weight of a Ford Crown Victoria patrol car — traveling 55 miles per hour has 423,500 foot-pounds of kinetic energy to burn before it can be brought to a stop. This much energy can throw a four-ton elephant 53 feet into the air.
Tack five miles per hour onto that speed and keep this in mind as you picture Officer Kevin Parker flying down Cavalcade, in northeast Houston, on the night of May 1, 2009. In court, he'll claim he was responding to a report of a drunk driver a few miles away, a call for which there is no record. He's running silent — no lights, no siren.
In the eastbound lane of Cavalcade, where it crosses Lockwood, 27-year-old LaShonda Rochelle is about to turn left on a green. She is yielding to an SUV that is approaching from the opposite direction on Cavalcade. Riding shotgun is her friend Mattie Etubom, 54; the two are heading home after stopping at a barbecue joint. When the SUV turns, Rochelle's Chevy Malibu follows suit, and Etubom leans forward slightly to take a bite of her rib sandwich. That's when it happens.
Parker's Crown Vic T-bones the Chevy; the passenger door crumples in on Etubom like a trash compactor and the car is knocked into a utility pole. The right side of Etubom's head whips against something hard. Her lawyer, Mike Phifer, will later describe the injury as kind of like bashing in one side of a pumpkin. The force splits her palate, knocks out two teeth, fractures her right eye socket, causes a hemorrhage in her brain and bruises her lungs so badly that she'll carry a lunchbox-size oxygen tank for the rest of her life. Although Parker and Rochelle suffer only minor injuries — Parker is well enough to return to the scene that night — Etubom is the last to be transported to the hospital, because it takes the Jaws of Life to extract her from the car.
No one can find her wallet or purse; she's checked into the hospital as "Female-Juliet 1401" and remains unconscious, hooked to a ventilator. It takes her boyfriend of nine years nearly three days to find her. No one representing the City of Houston visits Etubom during her 52 days in the hospital. But she does receive a bill for the ambulance ride.
She's wrecked but alive. Estela Medrano is not so fortunate.
Just more than one year after Etubom's accident, Medrano is riding shotgun in a car at night that is T-boned by a police cruiser running silent at 84 miles an hour. Medrano, a respected professor and scientist at the Baylor College of Medicine, will die at the hospital two hours later. The officer in that case will testify that he made eye contact with Medrano just before the collision.
Last December, the Etubom case went to trial. The jury, faced with a list of perplexing instructions, rendered one decision declaring the officer 60 percent liable for her injuries — and awarding Etubom $2.26 million — and another finding that the officer had not violated regulations. The decisions canceled each other out. Harris County District Court Judge Dan Hinde would have to pick a "controlling decision."
A month later, the city settled the Medrano case, awarding the family $262,500.
City Attorney David Feldman told the Houston Chronicle that this was one of those rare lawsuits that "cry out" for a settlement.
"The settlement was the right thing to do," Feldman said.
Phifer read Feldman's comments and hit the wall. As far as he's concerned, the incidents were practically identical. It's just that one victim was a distinguished scientist and the other was a woman who slung hot dogs at Astros games.
After getting angry enough to dive into the details of the Medrano case, Phifer decided that the city hadn't treated these cases differently solely because of race or socioeconomic factors, but because of the way the Houston Police Department rewrote its policy on running silent. The new policy, he believes, was put in place to protect officers, not to prevent another Etubom or Medrano.
Phifer didn't know that the rewritten policy existed at the time of the trial. The city never turned it over during discovery. Before Hinde had made his final decision, Phifer filed a motion for a new trial.
In February, Hinde declared that the city had withheld and destroyed evidence, ruling that "a new trial is necessary in the interest of justice."
With one woman dead and another left with permanent injuries, Phifer wants the chance to tell a jury that when it comes to certain policies, the Houston Police Department and the city's legal department care more about protecting their own than protecting the public.
It might have been easier to confirm what happened on the night of Etubom's accident if the city hadn't blown up some of the evidence. But these things happen.
Sometime after Etubom's original lawyer sent the city's legal department a letter requesting the preservation of evidence in the case, the police department's bomb squad used the totaled cruiser in a training exercise: A bomb was detonated inside the car.
The explosion did away with the car's Mobile Data Terminal (MDT), which records calls for service. (Police cars are also equipped with a black-box system that records the cars' speed. However, the car Parker was driving that night had previously been in an accident and the system was never replaced, according to one of the attorneys.)
Ordinarily, there would also be a dispatch-center record of the call (a "call slip") Parker says he was responding to that night, but no such record was ever found. (City officials declined to comment for this story.)
It's important to note that, while the same city attorneys worked on both the Etubom and Medrano cases, they gave conflicting stories on whether calls for service were even stored in the MDT's hard drive.
In the Etubom case, Annie Teehan, an assistant city attorney, told Judge Hinde that "police sources" told her that MDTs don't retain call slips, so it didn't even matter that the MDT in that case was destroyed. Yet after the trial, Phifer discovered that the city was able to provide MDT data in the Medrano case.
In the February hearing for a new trial, Hinde asked Teehan if she had verified Phifer's contention.
"I wasn't able to get that far into it, Your Honor," she said of the Medrano case file. "It's like 15 boxes."
Hinde was incredulous.
"They have made some very serious allegations in a case with [a] history of the city squirreling away and destroying evidence," the judge admonished. "I understand...if this would look like a Hail Mary after a case where there hadn't been any problems. But we've had a history here where a car was blown up. The Mobile Data Terminal disappeared. The call slip disappeared...And you didn't go back and double-check and see if you can clarify some of this?"
But even if the MDT data magically appeared, it probably wouldn't change the city's bottom line, which is that Rochelle failed to obey one of the most fundamental rules of the road: She didn't yield to oncoming traffic while making a left-hand turn. It didn't matter if the oncoming traffic in question was approaching at nearly double the speed limit: Speed was not a factor. She was ultimately ticketed, but the citation was dismissed after the issuing officer didn't show up to traffic court. (Rochelle filed her own suit against the city shortly before Etubom filed; the cases were consolidated in 2011. Etubom had also sued Rochelle but later dropped that suit.)
Parker, a peace officer sworn to uphold the law, a man who once worked as a youth minister, swore he never saw Rochelle's car. Sure, he was speeding, but he was vigilant. He believed he was traveling at a safe enough rate in response to a very important call for service: a call regarding a drunk driver at US 59 and Cavalcade. Coincidentally, that phantom call is identical in nature to the first call he responded to that day, seven hours earlier.
Parker originally stated in a deposition that the concerned citizen who called police about seeing the drunk driver didn't dial 911 but instead called the department's nonemergency line, 713-884-3131. ( A 911 call would have been answered first by Harris County dispatchers — not HPD — so there would be a record of the call kept by an outside agency.) Parker later amended his answer to say that he didn't know how the call came in.
But that's not the only inconsistency: In his original accident report, Parker checked off a box indicating that he was not responding to an emergency call at the time of the accident. He later said he was on an emergency call, and he chalked up the answer on his accident report as a rookie mistake. The city also flip-flopped on whether Parker was responding to an emergency, claiming in December 2011 that he was not but in July 2012 that yes, he was.
Parker also stated in his deposition that he didn't slow down when he reached the fateful intersection because he had a green light. But in an affidavit six months later, Parker claimed, "[I] removed my right foot from the gas pedal."
But the clincher — what changed in the time between Parker's deposition and his testimony on the witness stand — was whether he thought he had the discretion to disobey traffic laws while running silent.
The policy governing that question, contained in HPD General Order 600-01, was the crux of both the Etubom and Medrano cases.
The order lays out the hierarchy of police calls — called "priorities" — that dictate the urgency of a call and how an officer should respond. Both the phantom DWI call in Etubom and the call in Medrano were priority twos. The standard response for such calls is to run silent, but officers can opt to use lights and sirens as long as they notify the dispatcher. What both cases hinged on, though, was whether General Order 600-01 allowed officers to run silent while speeding. Both officers said that running silent was the more prudent response in those two cases because emergency equipment can sometimes cause traffic jams or tip off suspects. (See "Using Discretion.")
Testimony from officers in both cases, from rank-and-file patrol officers up to the assistant chief, suggests that there's enough wiggle room in how general orders and state laws are written, nearly to the point where the written word doesn't mean a thing.
According to the city, the Texas Transportation Code, which gives officers broader discretion to disobey traffic laws while running silent, supersedes HPD's general orders. But the biggest kahuna is a general order cryptically cited by HPD Executive Assistant Chief Michael Dirden in the Medrano case. Without identifying it by number, Dirden revealed the existence of "another general order that says when neither law nor policy provides clear guidelines of what to do in any particular situation, the officers are allowed to use their discretion."
Why this omnipotent order was never played as a trump card in either case is as mysterious as the order itself. (The Texas Attorney General's Office agrees with city attorneys that HPD general orders are exempt from the state Public Information Act because bad guys might read through them and get the upper hand.)
Further muddying the facts of the Etubom case is the lack of a comprehensive accident investigation.
In April 2012, Houston Police Chief Charles McClelland issued the following statement to KHOU TV Channel 11 for a story the station's I-Team did on such accidents: "Officers involved in accidents are subject to thorough investigation by Vehicular Crimes Division investigators who specialize in accident investigation. The results of these investigations, including the determination of fault, are reviewed by the officer's chain of command and the Department's Accident Review Board."
If that's true, then either the Etubom case is an anomaly or the chief was using an alternative definition of "thorough."
Officer Richard White, who was in HPD's Accident Division at the time, testified in the Etubom case that reconstructions are done only in fatality cases. Even though Etubom sustained severe injuries, the accident was classified as "property damage," so, according to White's testimony, there was no need for him to review the Mobile Data Terminal, ask to see the last call slip or attempt to interview Etubom. Without such encumbrances, White was able to turn in his final report before Parker had even turned in his report, two days after the accident.
White didn't need to determine how fast Parker was driving, what kind of call he was or was not responding to, or whether he was running silent in order for White to conclude that Etubom's friend, and not Parker, was responsible for the accident. Part of White's reasoning was that because Parker's car left no skid marks, the officer "would not have believed that there was anything...in his way that could have possibly distracted him from going the speed he was going, or there wasn't anything in the road that would have caused him to swerve or slow down."
Any reference to the citation was barred under what's called an order in limine, wherein both sides agree not to mention facts considered irrelevant. It's difficult to tell whether it was an honest mistake or a deliberate attempt to sway the jury. Overall, White was rather prickly toward Etubom's and Rochelle's attorneys; even though he testified to having investigated hundreds of accidents and doing cool-sounding stuff like "forensic mapping," he claimed he didn't know how many feet were in a mile or how many miles a car would go in an hour if it were being driven at ten miles an hour.
As punishment for White's slip-up, Judge Hinde went the grade-school route: He ordered the officer to write a 1,500-word essay on the importance of motions in limine.
Even if White had said he knew, at the time he was writing his report, that Parker was violating General Order 600-01 by running silent in excess of the speed limit, it probably wouldn't have made a difference.
White testified that what General Order 600-01 mandates in "black and white" doesn't necessarily apply to what actually happens on the street, where "police officers operate in gray."
And despite what the order says in "black and white," police officers have their own ways of responding to calls, he testified.
When Rochelle's attorney, Brad Beers, asked White, "So if there's 5,000 police officers in HPD, if each one of them got this call, we might have 5,000 ways of responding to that same call?"
"You may have, yes," White said.
Estela Medrano was at the forefront of an area of cancer research — the biology of melanin-producing cells called melanocytes — that brought her worldwide acclaim in the field.
Born in Argentina, she studied organic chemistry at the University of Buenos Aires, but it was her work on something called melanocyte senescence at the University of Cincinnati that made other researchers take notice. The Journal of Investigative Dermatology called Medrano a "true pioneer."
She joined Baylor College of Medicine in 1995 and was appointed a professor at the institution's Huffington Center on Aging. Baylor has since established a research award in her name.
She and her husband, Jorge, had just returned from Switzerland, where Medrano was co-chairing a research conference, the night she died. Jorge, 71, was driving.
They were turning left into the entrance of their gated South Braeswood complex when Officer Kyle Dozier, running silent at 84 miles per hour in a 35-mph zone, T-boned the couple's Scion.
"I saw the blinker coming toward me," Dozier said in his deposition after Medrano's family sued the city. "He turns in the median. I thought he stopped. But he kept coming towards...my lane. I was like, 'This is not good.' I knew if I hit the brakes, I was probably going to slide and hit him. So I just turned to the right. And that's when I saw a lady look me in the eye. And I saw someone's ear. And the next thing, I woke up and saw someone's hand in the window. And I thought it was a kid."
Of course, it was Medrano's hand.
In the ambulance on the way to Ben Taub, according to the lawsuit, Medrano struggled against her restraints to try to pull the oxygen mask from her face. She died shortly after arrival.
Dozier, who wasn't wearing a seat belt, broke his neck but made a full recovery.
Unlike in the Etubom case, there was significant media coverage of Medrano's death. And since it was a fatality case, there appears to have been one of those "thorough investigations" McClelland spoke about. Evidence was preserved. No police cars were blown up.
While those factors may have contributed to the city's decision to settle, it was originally determined to defend itself to the fullest. One of the city's experts, a professor of environmental physiology, was prepared to testify that a major factor in the accident was not so much a car driving 50 miles an hour over the speed limit in a residential neighborhood at night but Jorge Medrano's jet lag, which disrupted his "circadian rhythm."
The city maintained that Dozier was responding to an emergency and, like Parker, was acting in good faith.
According to depositions, Dozier was actually assisting on a call dispatched to another officer — not an unusual practice. A woman driving home from a club on the 59 feeder near Fondren had called 911 to say she was being followed by two men who had been at the same club. The call came in at 12:29 a.m.; at 12:35, dispatch records stated, "Suspect finally turned around and is no longer following...Complainant no longer needs police."
Dozier stated in his deposition that what he learned about responding to priority two calls — how General Order 600-01 was explained — was different from what he saw in the field afterward.
"The academy tells you state law," he said. "Training was different."
Earlier in the deposition, he said, "I don't know how to explain it. Like I said, the academy tells you black and white, what's in the — what's on paper. Training shows you real, live scenarios on what happens. Training taught me to treat everything as a worst-case scenario. So you expect the worst for everything and do the best you can to help — help the citizens out, I guess you can say."
The officer who was assigned to the call that night, Ramnik Saini, said the same.
In his deposition, he stated that his superiors in the field told him that he could in certain cases break the speed limit while running silent, in violation of General Order 600-01.
"Yes, they told me I could go faster," Saini said. "I mean, in the streets things are different...You know, if there's nobody in the road, you can go fast. I mean, if there's traffic, of course you're going to follow all the laws."
After his actions on the night of the fatal accident were investigated, Dozier was suspended for ten days without pay. In his deposition, he said the suspension was for "no seat belt and poor judgment." But he didn't really know what the "poor judgment" part was — he already knew he had "messed up," so he "just didn't read" the suspension papers.
When the Medranos' attorney asked Dozier if, looking back, he would have done anything differently that night, he said, "May[be] have my seat belt on." Dozier followed up by saying that not wearing a seat belt was really the only thing he should have been disciplined for.
The attorney, Richard Lagarde, thinks that may have been the point at which the city decided it might be best to settle.
"That was the ultimate callous response, in my mind," he says. "And I suspect they didn't want to hear that being played back to the jury in our case. I mean, here you've just killed a lady — he testified that he literally saw her hand go up to her...side window to try to shield off his car that's coming at her at 80-something miles an hour, and no regret, no remorse...That's cold."
'There are two victims in this case — one was Mattie Etubom; the other was the truth," Mike Phifer says. "And the city ran over both."
But it's uncertain if he'll have the chance to prove that in court. Although the retrial was set for March 25, it's been stayed pending a motion to vacate Hinde's motion for a new trial.
In its motion, the city's attorneys accused Phifer and Brad Beers of concocting a conspiracy theory by lassoing facts from the Medrano case in order to nullify a verdict that didn't make them happy.
"The [Medrano] case was handled and resolved based on the facts and merits of that case, which have nothing to with this case," the motion states.
Which might turn out to be true if the city's legal department could just delineate how those facts and merits "cried out" for a settlement and the facts and merits in the Etubom case don't — especially when the city was ready to pin Estela Medrano's death on her husband's circadian rhythms.
Instead, the city paid her husband $262,500 — but city attorneys also agreed to the Medranos' special request: that the Houston Police Department produce a training video on the risks of speeding while running silent.
Narrated by one of Medrano's sons, the script reads, "I believe that my mother would be alive today if the officer had used good judgment and turned on his emergency lights and siren...We don't want you to be injured or killed, and we don't want any other families to suffer the way our family has suffered."
The department agreed to show the video to cadets, and to current officers during retraining exercises, through August 31, 2014.
After that, the department doesn't have to show it.
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