In the Erik Scott case—and many others—I have often cautioned readers about witness testimony. Update 8 dealt with the topic in some detail. Understanding its pitfalls is one of many reasons I cannot bring myself to watch TV cop dramas, or indeed, much of what passes for police realism at the movies. The entertainment industry commonly depicts witnesses in one of two ways: (1) the virtuous, absolutely accurate citizen misunderstood by the police until they are unquestionably proved right, and (2) the liar who is eventually exposed and prosecuted by virtuous police officers. These stereotypical characters fit well into common narrative structures, but in reality, eyewitnesses are influenced by a bewildering variety of factors, many of which are not obvious to investigating officers, and many of which will never be known to investigating officers.
In cases like the Scott shooting–which happen very quickly and unexpectedly–eyewitness accuracy is further hampered by three overwhelming factors: (1) there was a tightly packed crowd of several hundred people, making a consistently, clearly unobstructed view of the action difficult or impossible for many in that crowd, (2) from the first shouted, contradictory command until the first shot struck Erik Scott, only two seconds elapsed—if a witness wasn’t in a position to see that action from the beginning, it would be unlikely they would see much of anything—and (3) From the moment the first shot was fired, virtually everyone in the crowd was running, ducking, hiding and sheltering loved ones with their bodies from what they were certain was uncontrolled, wild police gunfire in the middle of that crowd (an entirely accurate assumption on their part).
Even so, a substantial number of people did see the beginning, the action, and the aftermath of the shooting. The accounts of many of these witnesses are accurate, at least in part. Some are wildly, almost comically, inaccurate, and others are almost completely accurate.
How can the police know—how can anyone know—which witnesses to believe? In this case and any other, the best indicators are independent physical evidence and common sense. Is what witness A says physically possible? Can it fit into the independently established and accurate time frame? I’ll discuss this in more detail shortly.
There are a wide variety of other factors to consider as well. Was the witness actually in a position to see what they say they saw? Do they have particular prejudices that might influence their statements? A number of witnesses in this case gave fulsome, even fawning praise of Metro and the officers that killed Erik Scott. Any competent investigator should be particularly careful about accepting such testimony.
Another important factor is the very nature of the situation. Many people will naturally assume that if Scott was shot by the police, he must have had a gun, a factor that many in the crowd were reinforced in believing by rumor rushing through the crowd as they asked why the store was being evacuated as they were leaving the Costco that day (store employees told customers there was a man with a gun in the store). This factor alone could lead people to “see” a gun in Scott’s hand when no gun was present, or turn a cell phone on the ground near his body into a gun. It could—and did—turn any and every arm or hand movement on his part—in the perception of some witnesses–when challenged by Officer Mosher, into a deadly threat.
Another factor is the possibility of undue influence by Metro. Many of Metro’s handpicked witnesses have Metro ID numbers, indicating the possibility of records, or perhaps active investigations. We know that Metro is not only capable of, but appears to engage in, the intimidation of witnesses, as even in the Scott case, they harassed Samantha Sterner with multiple chickenshit traffic citations, and engaged in similar abuses with many that dared to display a magnetic Erik Scott memorial ribbon on their vehicle (Update 7, Update 7.2 and Update 8 provide in-depth information). Metro also engaged in a completely unethical, unprofessional, and potentially criminal, interviewing tactic with virtually every witness subjected to a taped interview.
Patrol officers and detectives have very different responsibilities. In a case like the Scott shooting, patrol officers must identify each and every potential witness. It doesn’t matter if they saw only a portion of the action, it’s vital that anyone who saw anything be discovered and if possible, kept at the scene. If they cannot be kept there–they’re not under arrest, after all–their complete contact information must be gathered and preserved so detectives can follow up later. The police never know when the smallest fragment of information might provide a break in the case, or the key to solving it.
Patrol officers are also commonly responsible for having each witness complete written statements on the spot. They all carry forms for this specific purpose, and there are specific protocols for how those forms must be completed. Those common protocols were repeatedly broken in this case. The patrol officer’s job is to handle things until detectives can arrive, and then, as quickly as possible, to get back on the street to handle other calls.
Detectives are responsible for the in-depth investigation that follows the patrol officer’s preliminary investigation. It is their job to re-interview every witness from whom the patrol officers obtained written statements and to find and interview everyone they did not. It is their job to dispassionately gather and analyze all evidence and come to a just conclusion, which can lead to not filing criminal charges—virtually always the case when a Metro officer might be charged–or the opposite.
In professional agencies, polices and procedures are in place in the interviewing process to ensure that statements are not influenced—inadvertently or on purpose—by investigators. It is ridiculously easy to do this. Most people are at least somewhat intimidated by the police and many have a subconscious tendency to try to please them. At the very least, they will try to give the police what they think the police want.
INTERVIEWING TACTICS OF THE UNPROFESSIONAL AND CORRUPT:
In agencies that are less than professional, agencies—arguably like Metro—that are primarily interested in supporting the pre-determined narrative and in protecting their own hides, there is a common—and unethical, unprofessional, and potentially criminal—technique for statement manipulation. Why criminal? Subordination of perjury, a felony which means encouraging others to lie. It works like this: a detective sits down with a witness and conducts an interview, an interview they tell the witness is being recorded for later transcription. But when the interview is over, the detective says: “oh no! That darned tape recorder didn’t work again! I’m sorry, but we’ll have to do the interview over.”
Why would a detective do this? It allows them the opportunity to hear, off the record, everything the witness knows. During the second interview, they are prepared to shape the interview by failing to ask certain questions, by failing to bring up certain topics, by cutting off certain answers, and by channeling the questions and answers to fit their narrative rather than gathering all the facts. If a witness is silly enough to try to bring up things the Detective doesn’t want on the record, he’ll interrupt, confuse and obfuscate the conversation, and will certainly fail to ask the kind of rational and necessary follow up questions the statements of the witness would provoke in any competent investigator truly interested in the truth. And of course, that darned tape recorder can fail–again–without warning.
Another tactic commonly employed—and a dead giveaway to professionals—is taking far too little time to conduct a competent interview. The interview of Officer William Mosher—the man primarily responsible for the death of Erik Scott—took only 15 minutes. The Interview of Officer Joshua Stark—who fired one round into Scott’s back as he fell, face-first to the ground—took only 10 minutes. The interview of Officer Thomas Mendiola—who fired four rounds into Scott’s back and was later fired for giving a firearm to a felon—also lasted only 10 minutes. Only two other officers were interviewed—Dustin Bundy (four minutes) and Dean Vietmeier (two minutes). Their interviews are discussed in the same link as Mendiola.
In my police career, I routinely conducted interviews lasting an hour and more, even for misdemeanor crimes. A ten or fifteen minute interview of an officer who shot and killed a citizen is, by itself, an enormous red flag. No one, not Sherlock Holmes himself—could possibly come close to conducting a competent, professional and minimally complete interview in such a ridiculously brief span of time. Even establishing a rudimentary timeline of the event would take considerably longer. However, if the detectives were interested only in checking certain boxes in the predetermined narrative, 10-15 minutes would be sufficient.
During the trial-preparation process for the first civil suit in this case (which was dropped by both parties), a great deal was discovered when witnesses initially interviewed only by Metro were professionally interviewed by investigators working for the Scott family, or were deposed. Virtually every witness noted that Metro detectives used the “that darned tape recorder didn’t work again,” ploy. If their equipment was so defective, one might expect them to get working gear.
Witness and Las Vegas Public Defender Howard Brooks, was one of the prosecution’s handpicked Inquest witnesses. He did not stick to the narrative and the prosecutor treated him as a hostile witness, attacking him repeatedly on the stand—his own witness in a hearing with no adversary. Here is some of his testimony from that Inquest:
And I had one purpose in talking to this officer, and that was to avoid what I see over and over again in murder cases. And that is…that police always get a statement that’s off the record, and it allows statements to be characterized in all sorts of ways because there is no record of it.
I told the officer, ‘Look, I want to give a statement, but I want it to be on the record. I want it to be taped.” …he said ‘No problem.’ I gave a very detailed statement. And then at the end, he goes, ‘well, my tape machine wasn’t working so we’ll have to do it again.
WHO TO BELIEVE?
How can the police—or a jury—know whose testimony is most credible? Who should be believed and who must be ignored? The best way to proceed is to believe those whose statements accord with common sense and with independent evidence.
Is what a witness says reasonably possible? Some slick lawyers will try to convince people that anything is possible, but clearly, “anything” is not. Monkeys will never fly out of my posterior, I will never be transmogrified into a beautiful woman—even intensive surgery wouldn’t help there—and a tiny gun at home on Scott’s nightstand cannot simultaneously be in his right front pocket at the Summerlin Costco to be shot and damaged by Off. Mosher.
Does the evidence support the statement of a witness, or contradict it? I’m not suggesting that the witnesses are knowingly lying. I have no evidence to believe that. However, I do know how badly wrong witnesses statements can be–even when given in good faith–and how easily they can be manipulated without the knowledge and consent of a witness. What follow are some general indicators of what I’m saying.
GENERAL TRENDS IN THE METRO INTERVIEWS:
Many witnesses to the Scott shooting later contacted Scott’s attorneys and told them Metro refused to interview them. Despite their telling officers at the Costco after the shooting that they were eyewitnesses and wanted to give their testimony, they were told to go home and that Metro would contact them if they were needed. The officers did not take their names or contact information; there was no way they could be contacted.
This is an indication of gross incompetence, cherry picking, or both. Any supervisor for whom I ever worked, learning I had done that would have visited swift and terrible punishment upon me, and rightfully so. The last thing any professional police force wants the public to think is that they are not interested in hearing citizens who want to give them information relating to police matters and crimes. Competent agencies spend a great deal of their time trying to win the trust of the public and convincing the public to talk to them. This is particularly true in an officer-involved shooting where professional agencies are very careful to avoid even the appearance of impropriety. Refusing to take the statement of a citizen would certainly give that appearance. On the other hand, a police force interested only in supporting the narrative by handpicking specific witnesses would be expected to do exactly that.
Attorney Brooks was a rare exception: he would not take “no” for an answer, more or less forced Metro to take his statement and later turned the tables on them during the Inquest.
The Encounter: We know beyond any doubt, by means of the 9-11 recording of Costco Security Employee Shai Lierley, which recorded Mosher’s shouting and the gunshots, that from the moment Off. Mosher began yelling contradictory commands at Erik Scott until the first gunshot, which touched off the fusillade of seven police bullets in the middle of a crowd of hundreds, only two seconds elapsed. However, Metro’s handpicked witnesses could not remotely agree. Their estimates of the time involved ranged from five to 30 seconds. One witness suggested that Scott actually engaged in a lengthy argument with Mosher; no other witness said anything remotely like this. Most, in fact, did not see or hear Scott say anything to Mosher—he didn’t have time.
The Gunshots: Independent evidence (to whatever degree Metro can be trusted) suggests a total of seven rounds were fired, but the estimates of witnesses ranged from two to five and various vaguely stated numbers. Some saw Mosher shoot Scott, some saw Stark and Mendiola shoot Scott, but none saw Scott shoot at anyone.
Scott’s Gun: As I proved in Update 19, Metro’s own evidence and actions clearly indicate that Erik Scott could not have drawn his Kimber .45 and surely could not have dropped it on the pavement where he was shot. Even so, a few witnesses were sure Scott not only drew a gun, but pointed it at Mosher. However, even they could not provide a clear description of the gun they believed they saw. A few believed Scott might have had something in his hand, which might have been a gun. A few thought he might have been holding a gun in a holster. At least one thought Scott was holding a holster—there was no mention of a gun—and several believed they saw something in his hand—and something on the ground near his body, something described as a small gun, a gun rug, something black, something brown, even “a clip.” What is remarkable is the number of transcripts that avoid any mention of anything on the ground near Scott’s body.
Attorney Brooks again provided interesting—and from the evidence, accurate—Inquest testimony on this topic:
…at this point, Erik Scott is falling to the ground on his face. He is either on the ground, or he was falling to the ground, and officers two and three [Stark and Mendiola] commence shooting him as he’s falling on the ground on his face…
If the officer one [Mosher] had not killed him, it seemed to me clearly that officers two and three were making certain he would not be alive… I then circle around beside the first officer, trying to look at the body… I don’t see a gun anywhere around him. That’s what I was looking for. But I could see the bullet holes in the back.
Mosher and Scott’s Actions: One area where most witnesses agree is that all three officers present—Mosher, Stark and Mendiola—had drawn their handguns long before Scott and Samantha Sterner walked out the front door of the Costco. The majority of witnesses also agree that Erik Scott was behaving unremarkably. He was just another of the several hundred Costco Customers calmly walking out of the store that day in response to the Costco evacuation request. Most who actually saw the beginning of the confrontation also agree that when confronted by Mosher, Scott was surprised. A few thought that when Mosher pointed his weapon at Scott and began to yell at him, Scott appeared to be “agitated.” This might be a believable observation for Erik Scott and virtually anyone else.
NOTE: Police officers normally do not draw their weapons unless they are in imminent, deadly danger, and most agencies have rules governing this issue.
A few witnesses suggested Scott drew a handgun in one way or another. More saw only Scott moving his right hand in one way or another, some saw it moving toward Scott’s back, others his front, and one saw both hands moving toward his waist at the front of his body. One witness thought Scott was only “gesturing” with his hands, and another witness thought Scott might have pointed a gun at Mosher with his left hand. Scott was right handed and his handgun was holstered behind his right hip.
Dr. Edward Fishman–a physician–who gave both a written statement and a taped interview, never saw a gun in Scott’s hands, but did see him reach for his side and possibly pull up his shirt slightly, which caused Mosher to shoot him. During his inquest testimony, Fishman said:
It [Mosher’s yelling at Scott] was all very confusing. I was hearing commands, “Drop it, drop it’ is what I thought I heard. And there was nothing in Mr. Scott’s hand to be dropped.
Fishman, like Brooks, carefully looked for a gun on the ground near Scott’s body and saw none.
One witness—a minister—argued that Scott actually pounded the customer service counter with the butt of a chromed gun to get the attention of Costco employees and came out of the Costco with that gun in his hand. Not only did the employee who waited on Scott fail to back up that wild statement, there is no doubt that Scott had only his Blackberry in his right hand when he left the Costco. That is the only thing on the ground near his body after he was shot.
Another interesting omission is that detectives failed to ask witnesses who believed they saw a gun on the ground near where Scott had been shot precisely when they made that observation. As my theory of the case indicates, Scott’s .45 was found in the ambulance on the way to the hospital. Even Mosher’s statement reveals he did not actually search Scott after handcuffing him, and he did not find Scott’s .45 (or any gun) which was still in its holster, inside his waistband behind his right hip. Mosher also did not find the Ruger in Scott’s right front pocket and his interview says nothing about it, despite the fact that Mosher claimed he was worried that Scott might be wearing body armor (under a t-shirt in Las Vegas summer weather) or another gun). It would have taken only about 15 minutes once the .45 was discovered in the ambulance to retrieve it and place it at the scene, making a time frame for such observations an important matter. Of course, anyone working to support the narrative would ignore this important fact and assume the gun always had to be present.
Mosher’s Commands: Witnesses had a wide range of beliefs about these commands, which again, they felt took from five to 30 seconds. Some could not hear anything being said, and others heard only a tiny portion. Some heard things Mosher clearly did not say. Some, despite these handicaps, felt Mosher was giving Scott clear orders, which he must have been refusing to obey. Even Officers Stark and Mendiola said they had no idea what Mosher was saying, but were sure it must have been commands which Scott was disobeying. They also said they had no idea who fired, so of course, they both had to shoot Scott.
Mosher actually said:
Put your hands where I can see them now; drop it, get on the ground; get on the ground.
If Dr. Fishman and Mr. Brooks can be believed—and independent evidence supports them, not Metro—Scott had nothing in his hand apart from his Blackberry. Even Mosher, in his taped interview, admitted that only a few hours after killing Scott, he had no idea where Scott’s hands were. If he did not know where Scott’s hands were, why was he ordering him to present his hands? If Scott never had a gun in his hand—a hand which location Mosher did not know—why was Mosher ordering him to drop “it?” Drop what? And better yet, why, fractions of a second later, if Scott was actually threatening him with a gun, did Mosher suddenly develop the urge to forget about telling Scott to drop the gun, and instead order Scott to get on the ground? Remember that the best evidence, the Costco security camera feed, has vanished under highly suspicious circumstances.
Even if Scott understood and could process each of these contradictory commands in the span of two seconds, he could not possibly have had time to respond to one, let alone three distinctly different commands demanding three distinctly different actions. No matter what Erik Scott did—or didn’t do—he was dead the moment Mosher laid eyes on him.
Several of Metro’s handpicked witnesses said Scott did not move and only stood stock still before being shot. Several said he raised both hands in a sort of common “surrender” gesture. Common sense and independent evidence suggests these witnesses should be taken seriously.
Next Monday, I will post Update 20.2, which will provide representative summaries and excerpts from some of the interviews to which I’ve alluded in this article. In Metro’s files, they run more than 500 pages—Inquest transcripts and depositions run hundreds more, so there is simply not space to include them all, or even a substantial portion.
Even so, some interesting trends did develop. A surprising number of witnesses were upset at Metro for starting a circular firing squad in the midst of a large crowd of innocents. A somewhat smaller number expressed amazement that innocents were not shot by the police. Bystanders did not escape uninjured. An elderly woman in a wheelchair, trying to duck for her life, tumbled from her wheelchair onto the pavement, badly scraping her arm. Doubtless others suffered cuts and scrapes, but Metro’s reports make no mention of this. A few witnesses actually took the officers to task for failing to simply let Scott walk into the parking lot, away from innocents, before approaching him.
What is remarkable about the transcripts is the methods used by Metro. Many statements mention nothing about a gun, or a gun on the ground near Scott’s body. These are two of the most important facts in this case, yet detectives appear to have simply forgotten to bring them up to many witnesses. In many interviews, when a witness was clearly about to stray from the narrative, detectives immediately changed the subject, dropped that line of questioning, interrupted, argued with them, or otherwise stopped them. The same is true for a wide variety of important factors, factors any competent investigator would have been sure to cover in great depth and detail.
In many respects, the interviews–so poorly done are they–raise far more questions than they answer, which is never a good thing in any investigation.
More than anything, I continue to be amazed by the incredibly poor quality of police work in this case. Either Metro is systemically incompetent, or they are so corrupt they are willing to appear to be hopelessly inept because the truth is far, far worse.
As always, I’m certain readers are more than capable of making up their own minds. I hope to see you again a week from now.