Mimesis Law
28 February 2020

Cross: Walter Katz, Watching The Watchers

September 21, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg Cross San Jose Independent Police Auditor and former public defender, Walter Katz.

Q. You studied political science at the University of Nevada, Reno (the biggest little city in the world), where you graduated in 1989. Was the plan always to go to law school? Did you go into college with an interest in criminal law? Were there any political aspirations as well? Were you that very serious student who knew what he wanted to do with his life, or were you more focused on enjoying the freedom and the number 2 party school in Nevada?

A. I first knew that I was going to become a lawyer when I was about ten or eleven years old. My mom had an uncanny knack for getting into arguments with neighbors. This one was about a fence. I must have made some sort of observation that reminded her of her father – who was a lawyer in Switzerland – and that sparked my interest. Plus, the town where I spent the early part of my upbringing was a pretty well-off bedroom community and the rich kids all seemed to have dads who were doctors or lawyers. I desperately wanted to fit in, so “lawyer” made the most sense to me.

From fifth grade on, I took a pretty as dull as khaki chinos path to law school: high school debate team, college debate team, Boys State, political science major and I did a semester-long internship with the Governor of Nevada.

Along the way there were a couple other opportunities. I had a pretty keen interest in applying to West Point, but then in my senior year our debate topic was about U.S. covert military action in Central America.  This was the early eighties, so human rights conditions were awful in places like Guatemala and El Salvador as a direct result of our manipulations and interventions.  I didn’t know very much about the dark side of American foreign policy until then, and I still hold this up as one of the great benefits of competitive debate: learning hard-edged truths in a way one never can in a classroom.

I had a couple jobs that influenced me, too. I was a work-study stagehand at the campus concert venue. I worked backstage for the launch of the U.S. tour of a really huge British artist. Tours liked to start in Reno, because if you sucked, absolutely no one who mattered in the music biz would know about it. Backstage, the lawyer with the Halliburton briefcase was the only guy or woman from the tour who was not blitzed out on drugs.  I thought, that is the guy I would want to be… in control but seemingly the guy up front.

The other job was at a big truck stop and casino that is still around. The general manager sat down with me once, while I was in the coffee shop eating my lunch, when he asked what I was thinking of doing after graduating from college. The answer was I was not going to become a truck stop manager. Having said that, I would have avoided thousands of dollars of law school loans and today I’d be driving an F-350 daily and everyone would call me Walt or Slim.

I went through those years with no interest in criminal law. I had an upbringing with a pretty global perspective since my adopted parents were from Europe, so I wanted to do something international… and that sounds precisely as vague as my plan.

Q. You graduated from McGeorge School of Law at the University of the Pacific in 1992. Was there a reason why you stayed on the left coast? Did anything happen in law school to push you toward crim law? Were there other practice areas that interested you? Did you consider going the law firm route, maybe even Biglaw, coming out of law school? What about becoming a prosecutor?

A. Yeah, family kept me on the West Coast. I won’t go into it here, but our family went through a couple of heartbreaking tragedies in the mid-Eighties. When it was all said and done, it was just my mom and me. I had a half scholarship to George Washington Law that I turned down so I could stay close to home and keep an eye on her. (At this point I could turn this whole interview into a maudlin Dave Eggers rip-off… but I won’t.)

Then the recession happened. I found myself in my second-year apartment staring at an empty wall as my Top Ramen slowly soaked up every last molecule of water in the bowl. (No seriously, I said I am not writing crappy early 2000s existentialism) Actually, the 1990 recession triggered by the savings and loan crisis (Hello de-regulation!) seriously %#$^#! a lot of career goals at second-tier law schools. Where just two years earlier, multiple offers for second year summer clerkships were common, everything dried up.

I was disabused of my dreams of becoming part of a firm with international exposure. I wasn’t even getting interviews. My self-esteem was at rock bottom. But at the time, I was starting moot court and my debate background was really paying off. I was having an amazing time and moot court absolutely saved me as I realized that I had to be a litigator. I had two job interviews – one with the Alameda County DA and one with the San Diego Public Defender and then…

Crim Pro happened. Seriously, how many creative ways could Chief Justice Burger and company twist constitutional logic into an unrecognizable mess? And here is the passage that changed my life:

I hope it will be a matter of concern to my colleagues that the police surveillance methods they would sanction were among those described forty years ago in George Orwell’s dread vision of life in the 1980’s:

‘The black-mustachio’d face gazed down from every commanding corner. There was one on the house front immediately opposite. BIG BROTHER IS WATCHING YOU, the caption said. . . . In the far distance, a helicopter skimmed down between the roofs, hovered for an instant like a bluebottle, and darted away again with a curving flight. It was the Police Patrol, snooping into people’s windows.’

Orwell, Nineteen Eighty-Four (1949)

Who can read this passage without a shudder, and without the instinctive reaction that it depicts life in some country other than ours? I respectfully dissent.

That was Justice Brennan in Florida v. Riley. I was already enamored with Brennan and, of course, that grand lion of justice, Thurgood Marshall. That passage from Nineteen Eighty-Four in that autumn of 1990, as I had an offer from a public defender and a district attorney on my desk, shaped my path more directly than any other moment I had in law school. I had no doubt what side I was on and I could not have been happier with the choice I made.

Q. You went to the San Diego County Public Defenders office straight out of law school. Why there? Were you dedicated to the cause of criminal defense, or did you just want to grab as much court experience as possible? What kinds of cases did you do? And inevitable first jury trial question, so were you brilliant, a disaster or scared to death? What did you learn from that first trial?

A. The San Diego County Public Defender was a relatively new office with a sterling training program. We were a class of thirteen from law schools across the country. If you didn’t believe in the cause of defending the indigent, you didn’t fit in. A couple guys had the I-could-swing-as-a-prosecutor-too vibe, and they were definitely made to feel like they didn’t belong. We were young, idealistic, drank a lot after hours and wanted to be in court or the arraignment tank as often as possible. It was the kind of great time that you knew could only last a moment.

In San Diego us baby PDs only did misdemeanor trial work and felony arraignments in downtown San Diego. Then we got shipped out to a branch for more independent trial work before returning to felony training.

I lost count how many cases I tried but it was the whole misdemeanor gamut with a steady stream of DUIs and domestic violence. I was happy to say that I got far more acquittals than convictions, but then misdemeanor-land can be a deceptive mirage if you get deluded that felonies will be just as easy.

My first trial started the day after I got sworn into the bar. A broke health club owner was being charged with making a false claim in a promotion. It was a ridiculous waste of money… especially considering the disclaimer in small print that disclosed exactly what the poor guy was accused of hiding (something to do with cleaning fees on top of the membership fee.) Anyway, I got the flyer blown up and put it on an easel and all I did in opening was read the disclaimer. I could hear the poor city attorney behind me rifling through her binder and realizing her fatal flaw… she allowed a case to be handed off to her without knowing all the facts. (Be sure to watch Al Pacino in “Justice for All” to see how badly that can go.) To her discredit she didn’t dismiss the case right then and there and the jury came back not guilty in twenty minutes. My first verdict was my fastest ever.

Q. After doing your tour at the PD’s office, then a tour with the Alternate Defender, you shifted away from the courtroom into the Los Angeles Office of Independent Review, responsible for oversight of the Los Angeles County Sheriff’s Department. Why? What caused you to leave the trenches for oversight? Did you feel that you could do more to help than with your representation of individual defendants? Did you have enough of the frustration of the courtroom? Were you more policy wonk than trial lawyer? Did you miss the action in the well?

A. I was at the Alternate Public Defender in LA for fifteen years. I did somewhere around seventy-five trials, and it feels like half of them were life-exposure cases. Why did I leave? Three things. A great mentor told me early in my career that every lawyer only has so many trials inside of him or her. I was starting to believe that and I didn’t want to drop dead of a heart attack in the middle of cross-examination. I lived and breathed trials, to the detriment of my health and family.

Second, it was my goal to get through my career with none of my clients going to death row. I had had three potential death penalty clients and in each of them we were able to persuade the D.A. to not seek death (and in one case to dismiss all together). At some point this streak would run out and I was too scared to want to be there when it happened.

Third, I was having lunch at my desk one day while I had three open murder cases pending. I suddenly realized that all three of my clients were nineteen and that no matter how old I got they would always be nineteen. At that moment I knew it was time to get out if I could.

In the early 2000s, the LAPD was rocked by the Rampart CRASH scandal. Basically a group of dirty cops were stealing drugs and money, planting drugs, making false arrests and even shot and paralyzed a guy, and were getting away with it until they weren’t. One of the cops said to the DA, “I will tell you everything about everyone if you cut me a deal.” I forget the details of the deal but the DA sat him down for days and handed him police reports and he’d lay out one CRASH cop after another as being dirty.

My office was sitting on 119 convictions (almost all of them plea bargains) that were potentially tainted. So, my APD boss created a task force to review all these cases and put me on it. That started a deep interest in me in police accountability. What became clear is that some cases were horrible miscarriages of justice, but also that some of the allegations by the cop throwing the other officers under the bus were fabrications. I learned a lot about discernment during that stint.

I found oversight work extremely satisfying. I had grown tired of the one case at a time, where the impacts were limited perhaps to only that one client who may be thinking of writing heartfelt thank you letters for the next ten years or of shanking you. Being able to take my technical knowledge, legal skills and persuasive abilities and move the needle on important policies is very satisfying.

Q. You had eighteen years of experience with real people, real defendants and their families, before turning to law enforcement oversight. Was that helpful or a hindrance? Did you find yourself too inclined toward the defense view of law enforcement operations? Were you accepted as a fair voice, or as a partisan? Did you have to reinvent your perspective to keep a more open mind to the law enforcement view of the world? Was it hard to leave behind the experiences you gained representing defendants?

A. And eighteen years of experience reading police reports, cross examining cops, tearing forensic evidence apart and digging into complaint files and lawsuits. So, yeah, it was very helpful.  But here is the thing. That was a different hat I was wearing. As a defense lawyer I was an advocate for my client and I took the duty to zealously represent him or her very seriously. Here, I am essentially an advocate for process. Procedural justice is not about any one individual. It is saying that when an officer uses force or is suspected of wrongdoing that a fair and impartial system will develop the evidence and analyze it and apply to policy fairly and objectively. That is why I rarely, if ever, comment on an individual officer involved shooting on social media.  I’m not there. Without seeing the evidence I don’t know squat.

There are 18,000 police agencies in the U.S. Each of those departments is potentially moments away from a crisis. It could be a sex scandal, or a horrible shooting of a kid with a toy gun or a pattern of discriminatory conduct. We’d get hired by city managers or city councils or a chief to dig into department policies, training and practices and take a look into past incidents to get an idea of why the department functions the way it does.  Then we would come up with a set of recommended corrective actions.

This is not dissimilar to what the DOJ does with its COPS office, Collaborative Reform Initiatives. What many people do not understand is that police departments come with a range of insight and understanding of what works and what does not work. A lot depends on both the leadership and the culture, which took years to develop. Some departments actively seek out best practices, while others are very comfortable with a “this is how we’ve always done it” mentality.

There are only about 200 oversight offices in the United States and quite a few of them do not serve a robust policy analysis function. One of the ways that we help entities is helping them think of ways to develop an oversight model in their community that works best for their needs. There is a growing need for that kind of consulting service, as I expect civilian oversight to experience strong growth over the next several years.

Q. You moved to the LA Office of Inspector General, where you oversaw the “functions, procedures and operations” of the Sheriff’s Department. What does a criminal defense lawyer know about police operations? How did you come to learn proper practices? Were you determining whether they complied with the policies in force, or were you involved in formulating policies and practices? Did you find the cops to be willing to adapt, or resistant to change? Did policies really matter to the cops?

A. Both at OIR and at the Inspector General (OIG), we did oversight work but of somewhat different flavors. At OIR we were case specific. We monitored and reviewed deputy-involved shootings, significant uses of force, internal investigations and, to a certain degree, complaints. We did what is called “real time monitoring,” where the Sheriff’s staff got immediate feedback on the quality of the investigation and leadership’s findings and any recommended discipline.

Our focus was on the objectivity, fairness and thoroughness of the process. From that work, we would identify trends and issues which required a deeper probe that would lead to policy recommendations to improve their procedures and practices. Some of it may seem pretty dry at first glance, but with a closer look has significant ramifications… such as whether a deputy should or should not be allowed to see camera footage before providing a formal statement after a use-of-force incident. At OIG our work was more systemic and did not focus as much on individual incidents.

Hopefully, a criminal defense attorney will learn a lot about police operations. Look at what Sun Tzu says in the Art of War, “To know your Enemy, you must become your Enemy.” Today, “enemy” is a strong word, so I would choose “adversary.” I never considered the police my enemy, even in the most heated of cases. My goal as a trial lawyer was to understand the prosecutor, the involved detectives and the jury as well as possible. There is no sense in trying a narcotics wiretap case without knowing the ins and outs of how wiretaps are managed and vehicle surveillance is set up. By not being a $#@), I got a lot of information out of officers on how they do things that may not even be relevant to this case but another case I am working on. The same philosophy applies to oversight…. always be learning.

Q. You are now the Independent Police Auditor for San Jose. What’s your mission? San Jose police were not without their issues, not the least of which involved use of force and racial bias. Are these problems intractable? Are police capable of changing their ways, putting aside their implicit prejudice and desire for their own safety? Is this a training issue, a transparency problem? From your seat, are the problems as bad and culturally ingrained as they appear from the outside?

A. The mission of the Office of the Independent Police Auditor is four-fold: (1) we provide independent oversight of the San Jose Police Department complaint process; (2) conduct outreach about our services, which includes our office as an alternative location for members of the community to make complaints; (3) we make policy recommendations to the SJPD and (4) we monitor officer-involved shooting reviews.

Like many police departments, the SJPD has faced controversy over its practices, such as what appears to be a racial disparity in traffic stops and how the stops are conducted. San Jose is a very diverse city, about 1/3 white, 1/3 Hispanic and about 1/3 Asian. Only 3% of the population is African American. Statistically there has been a real disparity in stops and detentions. Researchers are right now taking a deeper look at the reasons for the disparities.

Different communities have different ideas of what policing should look like. San Jose has a significant homeless population, and many of them are mentally ill. In 2015, there were twelve officer-involved shootings and in four, the involved subject had a documented history of mental illness. Such challenges are not intractable. The police department has a progressive and open-minded leader at the helm who is embracing body-worn cameras, de-escalation training and implicit bias training and is rolling out crisis intervention training across the department. Those are all positive steps.

We at the Office of the IPA are working on additional initiatives which we believe improve accountability and transparency. For example, in 2014 we recommended an explicit ban on the use of chokeholds. That policy was recently put in place. In our last year-end report, we recommended that the department resume publishing annual use-of-force statistics and we were pleased to see that the City Council embraced our recommendation and directed follow-through in that critical transparency issue.

When people ask are “problems as bad” as they appear, I urge a degree of caution. Thoughtful oversight and policy work is not about broad brushes and grand proclamations, but the taking of incremental steps towards an objective where a police department’s officers act in accord with constitutional and community expectations. We want to see officers act courteously, to respect the right to be free of unreasonable stops and searches and to not use force unless it is necessary (more on that below).

Moreover, we expect that a police department has the robust systems in place to detect officers whose conduct does fall below expectations and to take decisive action when misconduct is found. The legitimacy of a police department rests on the twin pillars of accountability and transparency. It is my job to shine a spotlight on where the department is doing the right thing and where it needs to be doing a better job.

Q. One of the big issues you’ve addressed is the use of deadly force, the latitude given cops to kill by Graham v. Connor.  Can that be fixed internally, by policies limiting the use of force, the rules of engagement? Can anything overcome the First Rule of Policing, to make it home for dinner? Has your exposure to the police perspective made the problem of crafting policies to preserve everyone’s life harder? Are cop too quick to scare, too quick to kill preemptively? Does the law need to change to end cops’ killing in anticipation of a potential threat?

A. This question could fill a whole volume. I have written about independent investigations of officer-related deaths elsewhere and I am a big believer that such investigations need to be more transparent. Over the years I have been to dozens of scenes where an officer or deputy used deadly force. Some of those incidents were obviously well-justified and, conversely, a few were real head-scratchers – I am being as circumspect as I can be here – for why deadly force was found to be reasonable.

Three situations are the most troubling to me: (1) where the individual is not armed with a firearm and in an acute state of mental illness; (2) where an officer shoots at a vehicle because he thinks it is being used as a weapon; and (3) the largely unexplored phenomenon where a foot pursuit ends with a deadly use of force where the individual is right at what I call “the point of escape,” and for an unfathomable reason allegedly slows or turns and reaches for his waistband — even when unarmed!

All police-related deaths demand the closest scrutiny, but those are three areas where deaths are too frequent and the justification cannot simply be chalked up to, “well the officer feared for his life, so let’s move on.” It is absolutely necessary to ask the next natural question, “was it reasonable that he feared for his life.”  Until recently, I did not see prosecutors or law enforcement executives really diving into that second question too deeply because, I believe, it could frequently lead to uncomfortable answers. This is why video is so critical.

In 2015, I believe that six officers across the nation were criminally charged for their conduct during an officer-involved shooting. All six of those incidents were captured, at least in part, on video. That is why we need both body camera video and in-car video made as available as possible to all police departments. The challenge is dealing with the massive recurring costs involved in licensing and data storage that the body camera companies are charging.

As for the Graham standard… I am torn. The necessity requirement for deadly force in Article 2 of the European Convention on Human Rights (ECHR) is very attractive, but in the United States, we have the reality of 300 million firearms in circulation. Policing is dangerous work and I don’t have a lot of patience for those who trot out statistics that policing is safer than it has ever been. There are too many variables such as improved body armor, trauma care, communications, and tactics to make a simple comparison. I urge those who are critical of police conduct (and I am a critic) to do plenty of ride-alongs to get a feel for what a traffic stop really feels like when you have no idea who may be inside that car, or to respond to a volatile domestic violence incident in a confined space.

Having said that, I am very uncomfortable with pre-emptive deadly force. There are certain trainers out there who preach the warrior cop, “going home tonight is the only thing that matters” mentality. Officer safety is critical, but calibrating force standards to respect human life and safety is a real challenge because we are in a country that has such a propensity for violence.

Q. Having left the law side, where the police were the adversary, and joining the policy and oversight side, where you need to work with law enforcement to accomplish goals, do you believe that training and police are sufficient to address the pervasive mistrust between police and citizens? Do cops get why people don’t show them the respect they believe they deserve? Are cops willing to do their part to earn people’s trust? Is there really a need to train a cop to not assume people, too often black and Hispanic, are an inherent threat to their safety? Do they really need to be trained to treat people like human beings?

A. Again, broad brushes are tempting but not necessarily helpful. There is no doubt that there is a legitimacy crisis occurring right now. The police for the most part have the monopoly on the legitimate use of violence, so the burden is on them to prove their legitimacy. When an officer shoots a kid 16 times in Chicago, and he and his partners lie about him charging the officer with a knife, it’s hard to be sympathetic. When an officer shoots a black man running away from the officer in the back and then moves his electronic control device next to the dying man to fabricate the fiction of a threat, trust is absolutely destroyed.

Let’s assume that these officers were outliers. Then why, specifically in the Chicago example, were other officers so willing to lie about what is now charged as a murder? Police unions are so willing to chastise a football player for kneeling during the national anthem, but how often does a police union turn their back on an officer who obviously and callously violated the most basic human right of life?

The institution of policing is on the clock. It is on them to embrace cameras and oversight. It is on them to prove that de-escalation training, procedural justice training, crisis intervention training and whatever other training, is not window dressing. That will require the establishment of benchmarks and constant measurement to show that they are committed to change. Once I see departments treat the violation of constitutional rights and lying as seriously as they treat stealing and cheating on promotion exams, I will know we have turned the corner.

4 Comments on this post.

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  • fiver
    21 September 2016 at 2:17 pm - Reply

    Walter Katz, you rock.

    So glad to see you still fighting the good fight and fighting it so well. Not surprised in the least.

    McGeorge, ’92D (Section B)
    Moot Court Executive Committee

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