Dead Wrong

by Randall Sullivan

  That it was. What the complaint form mainly exposed was that the LAPD had made zero effort to explore Boagni’s allegations. Beneath the finding of “insufficient evidence to adjudicate” the LAPD had provided, as required by the city code, its “rationale”: “This investigation did not provide sufficient information to adjudicate these allegations. The investigation did not address numerous issues. Interview[s] of all the witnesses identified in the complaint investigation were not completed, and follow-up homicide investigations were not included for review … Another issue that was not addressed in the investigation is the fact of whether Boagni was actually housed with Perez in the detention facility. Therefore, absent further investigation that would garner additional information that will substantiate or refute the allegations, the most appropriate classification for these allegations is Insufficient Evidence to Adjudicate.”

  In other words, Sanders observed, “they couldn’t do anything because they didn’t do anything.” Even as the attorneys publicly expressed fury that the LAPD had hidden the complaint form and its attached documents from them for years, Sanders and Frank were privately reveling in the knowledge that they were now in possession of what they called blatant evidence of a police department cover-up, and along with it proof that numerous high-ranking police officials had been aware of Boagni’s claims long before the lawsuit went to trial and had almost certainly conspired to hide them. “We wanted the judge to have a look at that stuff right away,” Sanders said, “because we thought it would change the whole case.”

  “The smoking gun of all time,” Brizzolara called the complaint form.

  On page two of the document, it was explained that the investigation of Boagni’s claims was considered “confidential” and that the Rampart Task Force “retained all related documents pertaining to this complaint.” The investigators assigned to the Boagni complaint, that is, had never been permitted—if they had even attempted—to look at any of the evidence that might have supported the prisoner’s allegations. “They’re going to have to show it to us, though,” Frank said, “and I bet they’re more afraid of that than anything else in this case.”

  The only information in the complaint form that revealed anything new—beyond the degree of the LAPD’s determination to suppress the Boagni materials—concerned Sammy Martin. The LAPD had managed to shuffle Martin off the department with an under-the-table negotiation that resulted in his dismissal from the force for having lied about the trip to Las Vegas he made with Mack and Perez in the aftermath of the Bank of America robbery. As Sergio Robleto observed, “Letting Sammy Martin slide on all the other stuff he was suspected of being involved in was the most convenient way to make sure that no evidence that might discredit Rafael Perez ever surfaced.”

  While much was known about the police careers of Mack and Perez, almost nothing had been previously revealed about Martin’s. Part of the paperwork the detectives assigned to the Boagni complaint were required to submit, however, had been a “work/complaint history analysis” for each of the accused officers. Martin’s stated that between 1990 and 1995 he had been “the subject of six sustained complaints” that included warnings, admonishments, and suspensions for neglect of duty, unbecoming conduct, and unauthorized tactics. Said Robleto, “Nobody gets six sustained complaints in a six-year period and stays on the department. Yet somehow Martin did. There are some questions to answer about that.”

  They would be asking those questions, Sanders and Frank assured Robleto; Sammy Martin was now part of a case that would be vastly broader than what they had imagined when they filed their original claim in federal court. The attorneys were already working on a motion to transform their lawsuit into a racketeering case by the time they came before Judge Cooper on April 26, 2006, to present her with the complaint form and to request permission to depose “any and all” LAPD officers and officials who knew of its existence.

  “We think it’s appropriate to get to the bottom of everyone who has laid a finger on that document,” Sanders said. Therefore, he and his cocounsel were proposing that they be permitted to conduct a special two-week round of discovery depositions beginning on May 1.

  “Stunning information,” Judge Cooper called the complaint form after she had a chance to look through it. “Not to have turned this information over to the plaintiff, I’m just amazed,” she told the city’s lawyers. “I don’t know how that can be justified.”

  The attorney speaking for the City of Los Angeles, John Wright, conceded, “The timing of the release of the document is unfortunate; it should have been handed over earlier.” But he argued that it contained “nothing of any significant information more than what Mr. Sanders and his colleagues learned” during the week preceding the judge’s declaration of a mistrial. The plaintiffs’ request for new and greatly expanded discovery was based on an obstruction-of-justice theory that was not a cause of action in the lawsuit their attorneys had filed, and essentially permitted Sanders and his colleagues to interrogate police officials before deciding what to accuse them of, Wright added.

  The court also heard from Gerald Chaleff, who assured Judge Cooper that he had “formed a specialized unit consisting of about eleven people whose only job was to scour the department in the attempt to find any material that anybody might think related to this investigation” and that he was “confident that, one, we are finding everything that there is, and, two, nobody is attempting to hide anything.” Chaleff made no mention of his having personally compelled the city attorney’s office to turn over the box of materials that included the complaint form

  Sanders responded, “We intend to find out about who and at what level and in what offices and in what departments were involved in this cover-up, which goes directly to a racketeering complaint, because there was an FBI investigation going on at the time. It was public record and public knowledge that the FBI thought that Suge Knight was involved in this homicide and Death Row Records was involved in it. They were investigating it as a racketeering complaint. We happen to know and believe that there’s plenty of evidence already on the record that people within the LAPD were involved with that racketeering organization [Death Row].”

  The city’s posture toward the plaintiffs had been, “ ‘Let’s see what they know now so we can figure out what else to hide,’ ” Sanders told the judge. “We shouldn’t be put in that position again.”

  Cooper agreed. She had heard from the city at least a dozen times, and probably more, that “there was not one shred of evidence that Detective Mack or anybody in the Los Angeles Police Department had anything to do with the murder of Biggie Smalls,” the judge reminded the city’s attorneys. “There was such righteous indignation on the part of the city and the police department that these allegations were being brought forward … and there have been years and years of heels being dug in and absolute insistence that there was not any evidence anywhere that the police had any connection with this case. And now we see more and more and more is surfacing. And so I am very concerned that this is, in fact, a different case from the one we started out with, and that the plaintiffs are looking at a deliberate concealment and cover-up, which is extremely disturbing to me.”

  Therefore, she granted Sanders and his colleagues not just the two weeks for depositions that they had requested, but double that time, four weeks.

  For Sanders and Frank, the judge’s ruling was nearly as big a victory as her declaration of the mistrial and an award of sanctions against the city. “We walked out of the courtroom that day bursting with confidence,” Frank recalled.

  He and Sanders, however, were about to learn what it meant to be up against Vincent Marella, who would be coming at them with a tactical move so calculated and targeted that it seemed, for a while at least, to have turned the case upside down one more time.

  CHAPTER ELEVEN

  The four weeks following the presentation of the complaint form before Judge Cooper were immensely productive, from the plaintiffs’ point of view. Their depositions had
generated enough new information to justify adding a number of new defendants to the case, most notably the commander of the LAPD’s Risk Management Group, as well as his lead investigator on the Wallace v. Los Angeles lawsuit, plus Detective Steve Katz.

  The next scheduled court hearing in the case was a routine status conference, in which the scope of the plaintiffs’ new filing would be considered. Sanders and Frank had chosen to stay in Colorado Springs and join the proceeding by telephone, dispatching Bradley Gage to appear on their behalf before Judge Cooper. The two were so relaxed that they were sitting with their wives in a booth at the Famous Steak House, drinks on the table in front of them, when the judge’s bailiff called the court to order.

  The moment Marella began speaking, though, the two attorneys knew that they should have made the trip to Los Angeles.

  “Your Honor, we requested this status conference for a very serious purpose,” Marella told Judge Cooper, “and that is, we believe the court has been misled with very serious consequences in the case.”

  Sanders and Frank exchanged glances, each wondering if the other had any idea what this was about. Both shook their heads.

  Marella quickly summarized the developments of the past ten months, how an anonymous caller—“we still don’t know who he was”—had alerted Sanders to the Board of Rights hearing where Kenneth Boagni had testified “as to an alleged connection between David Mack and the Wallace murder.”

  “Over the next several days,” Marella continued, “Mr. Sanders made critical representations to the court about the information that Mr. Boagni possessed and the fact that it went to the heart of the plaintiffs’ case and, very significantly, that they had no knowledge of this, that the plaintiffs were completely unaware of the information and it was because that information had been withheld by the city … Your Honor, we now know that these representations were false, as we can demonstrate to the court—and we’re prepared to do that today, not by anonymous phone calls or not by innuendo or inference—that the plaintiffs had in their possession as far back as November of 2002, in detail and directly from Kenneth Boagni, the very information they stood here during trial and represented to the court that they knew nothing about.”

  The proof of his claims that Marella was about to offer appeared damning on its face: a four-page witness interview report prepared by the private investigator who had been working for the plaintiffs prior to Sergio Robleto. Dated November 7, 2002, and bearing the heading “Privileged and Confidential Attorney Work Product,” the report summarized an interview with Kenneth Boagni at Calipatria State Prison earlier that day. Boagni had described in detail what he was told by Rafael Perez about the Biggie Smalls murder and about the work Perez and David Mack had done for Suge Knight and Death Row Records, as well as the false claims Perez had made about the corruption in the Rampart Division.

  What Boagni had told the investigator in that interview was even more detailed than his statements to the LAPD. Perez had made it clear that the hit on Biggie was a response to Tupac Shakur’s slaying, Boagni said, claiming to have been at a meeting with Suge Knight and David Mack where Suge instructed the LAPD officers to obtain the weapon that would be used to kill Biggie. Perez told him they had done this, Boagni said, then described how he had been stationed outside the Petersen Automotive Museum on the night of Biggie’s murder. When he spotted the Bad Boy Records entourage preparing to leave in a caravan of SUVs, Perez said, he had phoned Mack, who was inside the museum, to say that Biggie was “available.” Mack phoned back five minutes later to tell him to “get out of the way,” said Perez, who told Boagni he withdrew from the immediate vicinity of the museum to a spot where he could watch what went down. After witnessing the shooting, Perez said, he saw the killer drive off in a “black Monte Carlo SS” with someone in the passenger seat. Later, he had made his way to the county morgue, Perez said, where he viewed Biggie’s corpse. Boagni also claimed that Perez had given him the name of the shooter, but refused to disclose it, because he wanted to “hold some things back.”

  Boagni described being interviewed at Calipatria by a team of LAPD detectives who turned off their tape recorder before asking what he knew about the Biggie murder. Steve Katz came to see him later and recorded that conversation, recalled Boagni, who said he had told Katz that Perez claimed there was an LAPD captain who knew about his and Mack’s involvement in the murder.

  So, it was clear that Sanders and Frank had the Boagni allegations in late 2002, Marella told the judge, yet “they never pursued the information during discovery, although they had the opportunity do so. They didn’t produce the information in response to the city’s discovery request, although they had the obligation to do so. Instead, what happened, Your Honor, was that the plaintiffs waited until trial was under way to stage what I think can only be called a drama of outrage about the very information that we now know they had.”

  He then asked Cooper to rule that there should be no further discovery in the case and that the plaintiffs should return the $1.1 million they had been awarded after the mistrial was declared.

  Judge Cooper declared herself “speechless,” then scolded Sanders over the phone in a voice that rose steadily as she spoke. “What I don’t understand is how you could have received this report that is almost four pages of detail about Mack and Perez and their connection to Death Row Records and all the details about how this murder went down the night that B.I.G. was murdered, how you could have seen this, decided to ignore it, and then carried on in front of this court as if a bombshell had been dropped in your lap when you heard about it in the middle of trial. I’m absolutely astonished that you could have pulled that off, and I believe you have absolutely deceived this court into believing that you knew nothing about this until it was suddenly revealed by the defense … I’m so angry right now I can hardly speak to you.”

  Gage had saved the day, arguing that his colleague deserved a chance to see the document Marella had submitted to the court and to file a written response to the claims that had been made against him. Judge Cooper conceded that this was fair and gave Sanders seven days to submit his reply.

  At the Famous, looking at Frank’s stricken expression, Sanders reminded his partner that they were protected by one very significant fact: in the same remarks from the June 30, 2005, hearing that Marella had selectively quoted, Sanders advised the judge and the city’s attorneys that he and his colleagues had been contacted by Kenneth Boagni “several years ago” and that he believed they had a witness statement from him.

  Boagni had been that prison inmate who had reached out through BiggieHotline.com and wanted to send someone living in Lake Charles to meet with Sanders back in 2002. The proposed envoy turned out to be Boagni’s wife, Darlene, but he hadn’t known that at the time, said Sanders, admitting he was “scared off” by the suggested meeting. “We were already havin’ people tell us to be careful,” he explained, “sayin’, ‘These people are for sure gonna want to kill you.’ ”

  He had not recognized the name Kenneth Boagni when he heard it spoken by Don Vincent in open court on June 27, 2005, Sanders said. It was only when Sergio Robleto told him that Boagni said he had spoken to their investigator three years earlier that he made the connection, Sanders explained.

  Sanders knew that defeating Marella’s claims against him was likely to be the single most important piece of work he did on this case. What he did not know was that the city’s attorneys had made sure the courtroom was filled with reporters while Marella was accusing Sanders of defrauding the court, and that every local television news broadcast would lead that evening with a story about this “shocking revelation,” as one broadcaster put it. By the time he heard about the news coverage in L.A., Sanders was already at work on his five-page declaration, and the pressure, he admitted, was “gigantic.” “Pissed off as I was, I had to admit that Marella is one hell of a lawyer,” Sanders recalled. “He can orchestrate a courtroom.”

  In his declaration to Judge Cooper, Sanders began w
ith a recitation of the facts that the judge already knew, from the time Don Vincent had spoken the name Kenneth Boagni in open court to his own announcement three days later that Boagni had contacted Dennis Chang’s office in 2002 and given Chang’s investigator a witness statement. Sanders then explained that BiggieHotline.com had produced hundreds upon hundreds of tips, “most of which proved fruitless.” Still, he had given the entire BiggieHotline.com file—every tip that had come in, including the one from Boagni—to FBI agent Phil Carson and the two LAPD Internal Affairs investigators, Roger Mora and Steve Sambar, when they visited him in Lake Charles in late 2002, Sanders wrote, “and redacted nothing whatsoever from the file.” Included in what he had given Carson and the LAPD investigators, Sanders noted, was Chang’s investigator’s report of his interview with Boagni; that, in fact, was how the city attorney’s office obtained the report—it had been given to the office by Mora.

  The tips that had come in on BiggieHotline.com were all eventually separated into two groups, “Active Leads” and “Dead Leads,” Sanders explained. Kenneth Boagni’s claims had ended up in the Dead Leads file, he wrote, because in the discovery documents provided by the city and the LAPD there was no shred of evidence that the meetings with LAPD detectives that Boagni claimed had taken place ever had.

  Some of the tips they had received through BiggieHotline.com, “such as the LAPD file contains clues on a D Mack being involved … actually were in the LAPD file as we were told they would be,” Sanders noted. “There were dozens if not hundreds of things we had been told would be in the file, which when checked against the file were indeed in the LAPD Murder Books produced by the city.” In other words, he and his colleagues had no reason to suspect that the LAPD was holding anything back, Sanders wrote. So when “plaintiffs found no corroborative information in the LAPD file that [Boagni] had spoken to Detective Katz and others regarding Rafael Perez,” he and the plaintiffs’ other attorneys had naturally put Boagni’s claims with the other “unsubstantiated or uncorroborated” tips in the Dead Leads file, Sanders explained. The fact that Katz had specifically denied under oath in a deposition ever performing any investigation of Perez only confirmed this decision.