Dead Wrong

by Randall Sullivan

  After the production of the Internal Affairs complaint form on the LAPD “investigation” of Perez and Mack in the Biggie murder, Sanders and Frank had moved for summary judgment on the basis of the city’s continued concealment of evidence. “Judge Cooper was strong,” Brizzolara said. “I don’t think she was swayed by political considerations—until we brought the motion for default judgment and an award of hundreds of millions of dollars. That was too much. She said, ‘No, the jury will have to decide that.’ ”

  Said Sanders, “When the city realized they were in no real danger of losin’ the case by hidin’ evidence, they were emboldened.”

  On July 31, 2006, the same day that the Los Angeles Times announced the launch of the LAPD’s “Operation Transparency,” the city’s attorneys responded to a discovery demand by the plaintiffs with a “privilege log” listing 183 “items” that they were withholding on the grounds of attorney-client privilege, attorney work product, and active investigative privilege. On October 2, 2006, Sanders, Frank, and company sent the city a letter challenging the “privileged” claim for each of the 183 clues being withheld. After a meeting on October 10, the city withdrew its assertion of privilege for 71 clues and the plaintiffs withdrew their demand for 12 others, leaving exactly 100 items in dispute.

  Chaleff had weighed in on November 14, 2006, with a declaration in which he claimed that, based on his “personal knowledge,” he could state that the LAPD “is conducting an active homicide investigation pertaining to the murder of Christopher Wallace,” and that he himself was “involved in the investigation.”

  “That was red flag right there,” Brizzolara said. “Why was Chaleff being allowed to look at clues from an ongoing homicide case? He wasn’t an investigator or an investigative supervisor.”

  The LAPD was classifying clues in the Wallace case as either “open” or “closed,” Chaleff explained in his declaration. Closed clues could be turned over to the plaintiffs, but open clues could not be. “Disclosure of these open clues to any third party, regardless of any preferred protective order, would potentially jeopardize the ongoing investigation, and the LAPD therefore objects to the production of open clue files,” Chaleff concluded.

  The battle that might very well decide the war had begun, and all the attorneys on the case knew it. On the plaintiffs’ side, the lawyers were increasingly confounded by Judge Cooper’s discovery rulings. “I had no clue—still have no clue—why we weren’t allowed to take Nino Durden’s deposition when she let us take Perez’s,” Brizzolara said. “And I have no idea why the judge ruled that we couldn’t take Sammy Martin’s, either.”

  The most stunning and disappointing ruling Judge Cooper made was that the plaintiffs would not be permitted to take a deposition from Kendrick Knox. “It might not have mattered, because we had his declaration,” Brizzolara said. “But if he died, his declaration wouldn’t have been admissible, while his deposition would have been.”

  “So that ruling might have had the effect of putting Knox’s life in danger,” said Gage, “considering who the people on the other side were in this case.”

  Brizzolara and Gage, who had been handling LAPD-related cases for years, found themselves increasingly appalled by the department’s maneuvering in Wallace v. Los Angeles. “I already knew that the main thing the LAPD uses Internal Affairs for is to cover up things they don’t want the public to know,” Brizzolara said. “But it went to a new level in this case. And look who headed up IA at the beginning and at the end of this case: Parks and Berkow, guys who have no scruples whatsoever.”

  “What has always troubled me about this case is that it’s not just Parks,” Gage said. “Bratton was just as responsible for the cover-up.”

  “Bratton is one of the villains of this story,” Brizzolara agreed. “He could walk through raindrops, but he was not a good guy.”

  It looked increasingly as if Gerry Chaleff had replaced Berkow as Bratton’s bulwark against the Wallace v. Los Angeles lawsuit. On October 11, 2007, Chaleff submitted to the court a declaration that the city had produced “each of the closed clues from the Wallace homicide investigation,” then in the next paragraph conceded there was one clue being held back that “potentially relates to the plaintiff’s theory of the case.” He requested a one-on-one in camera meeting with the judge to discuss it. “That was the beginning of the city and the LAPD trying to have private conversations with the judge about why they needed to withhold certain evidence from us,” Brizzolara recalled. “We should have fought it harder right then, but we were waiting to see what the judge ruled.”

  When Hillman and Cooper each ruled that the city could withhold that one clue, Sanders and company began to fight back. On November 20, 2007, they filed a complaint that the city was refusing to provide clues “relating to the five named ‘Death Row’ individuals [in their new lawsuit filing], regardless of whether or not they relate to the Wallace murder.” The city answered that it couldn’t explain why it could not turn over the clues except in an in camera hearing from which the plaintiffs’ attorneys were excluded, because “the explanation itself would potentially compromise [the LAPD] investigation.”

  Said Sanders, “They started makin’ these kinds of Catch-22 arguments, and the court bought them.”

  By January 2008, when Cooper agreed that the LAPD had reopened the Wallace murder investigation, the plaintiffs were trying to push back against a steamroller that was coming downhill at them. “The city said they couldn’t turn some of these new clues over because they would interfere with the investigation, and we said, ‘What? We have a protective order. We can’t reveal these clues. We just want to see them,’ ” Brizzolara recalled. “But a lot of these evidentiary hearings were before magistrates who looked at us very skeptically.”

  When the plaintiffs asked to have at least the opportunity to review a transcript of the sealed proceeding at which Chaleff had testified before Hillman on November 28, 2007, first the magistrate refused, then Judge Cooper backed him. Six days later, on January 30, 2008, the city submitted a list of 978 clues it had classified as confidential for in camera inspection. “Again, they’re all in the judge’s chambers looking at this stuff, and we don’t get to see any of it,” Brizzolara recalled. “They were slowly tying our hands.”

  On February 6, Chaleff submitted a declaration that only seven of the clues on that list were “open clues in the Wallace murder investigation.” One of the seven clues, though, was a hard drive that could have contained tens, hundreds, or thousands of individual clues, so far as the plaintiffs knew.

  “When I say that the city pulled out all the stops to keep this case from coming back to court, that’s an understatement,” said Brizzolara, whose frustration doubled when Hillman ruled on March 11, 2008, that clues “00001 through 00978” would remain under seal and withheld from the plaintiffs. Citing the in camera testimony of Chaleff, Hillman agreed that “the disclosure of the documents would likely discourage people from cooperating with the police.” He was rejecting the plaintiffs’ offer to look at the clues under a protective order, Hillman added, because that would not “adequately protect the anonymity of witnesses or the integrity of the ongoing murder investigation.”

  At a June 9, 2008, hearing before Judge Cooper, Brizzolara challenged Hillman’s ruling, detailing how the city and the LAPD had used Operation Transparency as a screen to prevent the plaintiffs from seeing the evidence in the case. Many of the clues the city had tried to hold back weren’t “new” at all, Brizzolara pointed out: the daily field activity reports for the night of the Biggie murder, for instance, “as well as numerous documents prepared by and/or transmitted to Det. Steve Katz.” The court should bear in mind that “Det. Katz is the disgraced former lead detective on the case who was found to have willfully secreted documents regarding the involvement of LAPD offices in the homicide,” noted Brizzolara. The city, he went on, “has employed the ongoing investigative privilege since the time that [the LAPD] was caught withholding documents directly
relevant to the plaintiffs’ case.”

  When the judge agreed with the city that even the various documents prepared by Katz were protected work product that should be placed under seal, the attorneys on the plaintiffs’ side knew they were being put in an untenable position.

  “We were facing the prospect of trial by ambush,” Brizzolara explained. “They could have admitted one of these clues as evidence and we wouldn’t even know what it was, wouldn’t know whether it was one of the protected clues or not. We’d have no way to prepare and no way to respond.”

  Added Gage, “They could walk us down a road where we didn’t know what we were facing. They could have decided a clue was invalid or no longer relevant and we wouldn’t know that. Or it could mean something, but we wouldn’t know what. In our wildest dreams we might not have been able to guess what was coming at us.”

  After consulting with his colleagues and his clients, Sanders decided that the only course open to them was to negotiate some sort of suspension of the lawsuit until the LAPD’s alleged investigation had run its course. That became imperative after Judge Cooper’s death in January 2010. The new judge assigned to the case, Jacqueline Nguyen, made it clear from the first that she had no intention of lifting any of the protective orders that had been placed on the evidence in the Wallace murder investigation.

  On April 2, 2010, the two sides of the Wallace v. Los Angeles lawsuit signed a joint stipulation to dismiss without prejudice. Part of the deal was a “tolling” agreement that allowed the case to be refiled at any time and that suspended the statute of limitations. “The point is to give the LAPD another year to close the case, which they keep claiming they are close to doing,” Sanders said. Whatever Chaleff and others were saying in their closeted sessions with the judges must have provided a strong indication that Operation Transparency was on the brink of arrests and criminal charges, Sanders and his colleagues reasoned. “What my clients want, first and foremost, is to see the killers of Christopher Wallace brought to justice,” Sanders said. “This isn’t about money for them.”

  However, the prospect of an enormous payday was a motivation for most of the attorneys on the case. The disconnect from the objectives of their clients—one client in particular, Voletta Wallace—was creating strains within the legal team. Brizzolara and Gage both felt they had enough to take the case to trial, even under the difficult circumstances created by the protective orders that had been put on much of the evidence. “No doubt in my mind, at all,” said Gage. “I’ve won millions of dollars in cases where I didn’t have a tenth of what we had in this case.”

  Brizzolara was concerned by how the dismissal was being spun in the local media. “When we moved to dismiss our own case without prejudice, it had absolutely nothing to do with the merits and the L.A. Times knew that, but of course they didn’t report it that way.”

  The New York Times article about the dismissal did include a long quote from Sanders, who “insisted the case was being withdrawn only to avoid interfering with what he called a ‘reinvigorated’ police investigation,” as the newspaper put it. Sanders had also “emphasized that since the suit was dismissed without prejudice, it could be refiled,” the New York Times reported: “ ‘The criminal investigation has been opened back up full-force,’ Mr. Sanders said. ‘The bottom line is that we did this because the family only wanted justice to be done.’ ”

  What Sanders didn’t say was that eight years of litigation had worn on Voletta Wallace. She had endured cancer treatment during much of that time and was increasingly concerned not only about the toll on her own health, but also about the way the constant drama of the case was affecting her grandchildren, now teenagers, who had “basically grown up with this thing going on around them,” as Sanders put it. Also, “Voletta felt that the mistrial and the evidence that came out afterward proved police involvement in the murder and that the case had basically been won,” Sanders said. “Now she wanted to believe that the LAPD was finally committed to solving her son’s murder, and she wanted to see what they did with that commitment.”

  The dismissal was a “wait-and-see strategy,” Sanders said.

  In the meantime, the evidence that had been the subject of court disputes consuming most of the past three years in the case was locked up in a safe-deposit box at the First Street Federal Courthouse in Los Angeles. Clues 00001 through 00978 were all inside that box, along with transcripts of the hearings that had taken place behind closed doors.

  “None of that stuff is going anyplace,” Sanders said.

  CHAPTER FIFTEEN

  Sanders and his colleagues would not obtain even a fleeting glimpse into what had gone on inside the LAPD’s purported investigation of the Christopher Wallace murder—its Operation Transparency—until late 2011, more than a year after the dismissal of the lawsuit. Even then, what they learned came to them indirectly, through former LAPD detective Greg Kading’s self-published book titled Murder Rap.

  Sanders knew that Kading had left the LAPD under a cloud more than a year earlier. For a few days in early autumn 2009, the Los Angeles media had been filled with stories about how U.S. District Court judge Steven V. Wilson had thrown out more than fifty federal convictions because of what the judge described as Kading’s “reckless disregard for the truth.”

  Before joining the Wallace Discovery Task Force, Kading had been a member of Operation Corrido, a federally run team of agencies from across Southern California that made an immense racketeering case against a Los Angeles supermarket chain owner named George Torres. He was accused of using his business as a front for the drug-trafficking empire he allegedly maintained by, among other things, ordering the murders of those who threatened it. In April 2009, Torres was convicted in federal court on more than fifty counts. Five months later, Judge Wilson voided every one of those guilty verdicts and placed most of the blame for his decision on Kading.

  In a scathing 147-page ruling, Wilson stated that Kading had unlawfully obtained the cooperation of witnesses by, among other things, making “promises of immunity, money, and benefits, while in prison, to drug dealers who faced decades of prison time.” The judge was also infuriated by his discovery that Kading had misquoted conversations caught on a wiretap of Torres’s phone in a search warrant affidavit.

  Wilson had been swayed by the testimony of former LAPD detective Steve Strong, the investigator for Torres’s attorneys. He had known Kading when they were both in the department, Strong recalled, adding, “and I thought he was a good guy.” Strong’s wife had been Kading’s LAPD training officer. “She thought he was okay, too,” Strong said. “But then I started listening to the tapes of his witness interviews and I was shocked. I couldn’t believe how overboard the guy went.”

  On those tapes, Kading could be heard offering the sole government witness in an alleged murder “big money” if would testify that Torres had ordered the execution of one Jose Maldonado. Judge Wilson would say it was obvious from listening to the tape of the interview that Kading had then supplied the witness with the answers he wanted to hear. “It all had to do with a guy [Maldonado] who worked for Mr. Torres and disappeared,” Strong recalled. “Nobody knew where he was. There was no evidence of any kind. Some people said he’d gone back to Mexico. But Kading got this one guy to say he’d been killed on orders from Torres.” On another tape, Kading had persuaded a second key witness to testify against Torres by promising to have domestic violence charges against his brother dropped. “When they put me on the stand, I told the judge Kading was totally out of control and had no idea what he was doing,” Strong recalled.

  The government would argue that Kading had not violated any LAPD protocols in those interviews. “Kading was telling them there’s no informant manual,” Strong recalled. “So they put me on the stand and I said yes, there is, and that it offers very clear instructions that Kading blatantly violated. The judge tells the U.S. attorney on the case, ‘I want that manual.’ Kading again says there is no manual, and the U.S. attorney tells that to
the court. But a senior LAPD officer took the stand and said, ‘Yes, there is a manual.’ The judge came unglued and said he wanted the manual in his courtroom in two hours.”

  After the manual was delivered and Judge Wilson had had an opportunity to read it, “he told Kading to get out of the courthouse and never come back,” Strong remembered.

  Sanders was keenly interested in what Murder Rap might reveal about the LAPD’s “reinvigorated” investigation of the Biggie murder. Mostly, what the book told him, Sanders said, was that Operation Transparency had been an utter sham dedicated to a single purpose: steering public attention away from the implication of police officers in the assassination of Notorious B.I.G. Virtually everything Kading had written about Russell Poole’s work on the case was riddled with misrepresentations, distortions, and lies of both omission and commission. In short, Sanders said, “What I learned from reading his book was that the investigation was a fraud, and so was Kading.”

  The falsest claim Kading made in his book was that what he called the “exculpatory truth” of Poole’s theory that David Mack and Amir Muhammad were involved in Biggie’s murder had been “painstakingly uncovered” by the LAPD investigation. In fact, the truth had been sloppily slathered over.

  Kading’s relentless misrepresentation of Poole’s investigation, and of the evidence that implicated Mack and Muhammad in the Biggie murder, was what most damned him in Sanders’s mind. The former Operation Transparency detective had portrayed Muhammad as the innocent victim of a witch hunt that Poole had created out of gossamer-thin evidence. Muhammad had “a reasonable alibi” for the visit to Mack in jail after his bank robbery arrest that Poole had made so much of, Kading wrote: He was simply checking on an old friend who had gotten into trouble with the law. That Kading knew, but made no mention of, the fact that Muhammad had used a name that wasn’t legally his, a false address, a false Social Security number, and an out-of-service phone number to arrange that visit was just one among many glaring distortions of the truth.