Oakland’s ugliest attributes have a way of infecting other cities. Take, for example, the events of June 4, 1995. On that night, in what has been described as San Francisco’s worst police violence scandal in decades, twelve officers beat, kicked, and pepper-sprayed a man named Aaron Williams, who died in custody thirty minutes later. More than a dozen witnesses described a scene of appalling brutality, in which cops repeatedly kicked a handcuffed Williams as he lay in a pool of blood. Medical Examiner Boyd Stephens later determined that a bruise on Williams’ cheek matched a shoe worn by one of the officers present, Marc Andaya. Stephens concluded that Andaya, who was to become the public face of police misconduct for the next two years, may have kicked Williams so hard that he left the imprint of his boot’s tread on the man’s face.
Marc Andaya learned how to be a cop in Oakland. Before transferring to San Francisco in 1994, he had compiled a remarkable litany of misconduct complaints and lawsuits in his eleven years in the Oakland Police Department. In 1984, he shot a man nine times, stopping to reload his service revolver in the process. In 1985, he was issued a thirty-day suspension for lifting a handcuffed suspect off the ground, choking him, and threatening to kill him. In 1991, a man named Joseph Martinez sued the city, claiming that Andaya broke four of his ribs, blackened both of his eyes, and chipped several of his teeth during a “beat down” outside an East Oakland bar. Captain Edward Smith of the OPD once reported that Andaya had rattled a roomful of rookies by putting an empty gun to his head and repeatedly pulling the trigger.
Clearly, Marc Andaya is an aberration, but his behavior, however obscene, was forged in a crucible of violence. During the years Andaya cruised its streets, Oakland was a really tough town, a blue-collar, multicultural port city whose dalliance with the crack epidemic of the late ’80s and early ’90s left nearly two hundred men and women dead on the streets every year. Though the crack and meth mercados off Hegenberger Road still rival the worst parts of Washington, DC,and Detroit, it’s undeniable that much has changed on the streets of Oakland.
Today, it’s impossible to conceive of a time when the police were almost routinely called upon to deal with such grisly incidents as 1992’s Bosn’s Locker massacre, in which a man sprayed a crowded barroom with automatic weapons fire, killing three. In accordance with national trends, Oakland’s violent crime rate has dropped sharply — albeit from the appalling to the merely troubling — so it’s hard to understand why, in the last few years, the numbers of misconduct complaints against Oakland officers has nearly doubled, from 83 in 1998 to 154 in 2000. Police critics charge that although the terrible years of the crack plague are gone, the culture within the police department has been slow to emerge from the white-knuckled, fight-or-flight posture of the early ’90s.
The numbers are particularly worrisome because of the fact that, despite paying high salaries, the OPD’s turnover rate is among the highest in the state; each year, dozens of officers, having cut their teeth on some of the toughest streets in the state, move to other Bay Area cities where, presumably, they apply the lessons they have learned.
So Oakland’s problems are everyone’s problems. Fraught with racial tension, still struggling with drugs, gangs, and violence, and patrolled by angry, resentful officers, Oakland is the epicenter of police-community conflict in Northern California.
Is the Oakland Police Department a crew of armed cowboys, running wild on the streets with nothing to restrain its darker impulses? Or is it the Thin Blue Line, barely keeping the worst criminal element from overwhelming us? For years, local civil rights attorney John Burris has championed the former interpretation, and he’s received much acclaim and renown as a result. But there’s another man who has spent the last two decades passionately defending the OPD’s reputation. Two months from now, Michael Rains, a cop turned police lawyer, will face his greatest challenge ever.
D efense attorneys love California’s legal system. In most states, prosecutors seeking indictments in major cases are allowed to present their evidence secretly before a grand jury, where testimony is sealed. But in California, prosecutors must argue their case in a preliminary hearing, which is open to the public. Lawyers for the defense get to hear the prosecution’s entire case, and even cross-examine witnesses. A preliminary hearing amounts to a dress rehearsal for the trial, and it furnishes a forum in which the defense can test strategies for destroying witness credibility and undermining the prosecutor’s case.
Late last spring, one of the East Bay’s most sensational preliminary hearings in decades took place in downtown Oakland’s Superior Court. Prosecutors were seeking indictments of several Oakland cops who had come to be known as the “the Riders.” Not since the late ’60s had there been a scandal offering such compelling evidence of misconduct, brutality, and pervasive racism within the Oakland Police Department.
It all started in the summer of 2000, when a rookie Oakland patrolman named Keith Batt informed his superiors that in the two weeks he had been on the job, the four cops assigned to train him had committed a staggering array of criminal acts. Batt reported that he had watched as OPD officers Frank “Choker” Vasquez, Jude Siapno, Clarence Mabanag, and Matt Hornung beat, framed, and planted drugs on dozens of West Oakland residents, all of them young African-American men. Batt’s story suggests the officers had engaged in this troubling conduct for years before he met them, and that upon his arrival they set out to teach him all of the tricks they used to falsify police reports and plant evidence. “Are you ready for the dark side,” Batt said officer Jude Siapno repeatedly asked him.
Police brass found the story deeply alarming; if true, the scope of the scandal was so wide it could cripple the department for years. It would also indelibly confirm the impression of thousands of Oakland residents that the city’s police force is a racist occupying army, casually dispensing its own brand of justice and circumventing the law without fear of accountability. Chief Richard Word quickly moved to cauterize the damage, firing the four officers and referring Batt’s allegations to the district attorney. Within months, the group’s leader, Frank Vasquez, had gone on the lam, leaving the remaining Riders to face trial on no fewer than 63 felony and misdemeanor counts, including fifteen counts of conspiracy, six counts of filing false police reports, two counts of assault with a deadly weapon, two counts of unlawful assault under color of authority, ten counts of false arrest or imprisonment, and two counts of kidnapping. Meanwhile, the public defender’s office was forced to review arrests by the Riders dating back to 1995; eventually, more than one hundred convictions would be reversed.
Clarence Mabanag, Jude Siapno, and Matt Hornung were in a world of trouble, so it was no surprise when they turned to veteran police attorney Michael Rains, a man renowned among California’s cops as being capable of accomplishing the most unlikely miracles.
On May 30, Deputy District Attorney David Hollister rose from his seat and called his first witness. Over the next week, he would present case after case of young black men who found themselves in the Riders’ crosshairs. Tall, reedy, and bespectacled, Hollister has mastered the classic prosecutor’s demeanor; his is the alabaster blandness of justice personified. With a cool dispassion, he coaxed horror stories from semi-literate witnesses, methodically building a case for indictment.
Nineteen-year-old Kenneth Soriano was the first to take the stand. Around 1:45 in the morning of June 19, 2000, Soriano said, he was packing for a trip to Denver and waiting for the Oakland police to come to his house; someone had stolen his cousin’s car and Soriano wanted the cops to take a report. When officers Keith Batt and Clarence Mabanag arrived, Soriano’s rottweiler started barking. Soriano and his cousin stepped outside and briefly talked to the two cops at his front gate before the cousin invited them inside.
That, Soriano testified, was when things got ugly. As Soriano’s dog barked and strained at his leash, Mabanag threatened to shoot the animal. Soriano got his hackles up, and Mabanag decided he’d flunked the attitude test.
Batt and Mabanag grabbed Soriano’s hands, and when he jerked away, they called for backup. In less than two minutes, a crowd of Oakland cops were swarming over Soriano, punching him in the ribs as Mabanag slapped a “sleeper” hold on him. Soriano said he went limp and put his hands behind his back, and Mabanag allegedly slammed his head to the sidewalk, opening a bloody gash just above his left eyebrow. After Soriano was handcuffed, the cops allegedly kicked his prone body at least three more times and pulled him to his feet. As Soriano’s mother looked on, someone searched Soriano from behind, hissed, “You ain’t got nothin’ on you, bitch,” and punched him in the ribs.
Except for a brief moment when paramedics patched up his eyebrow, Soriano spent the next twenty minutes in the back of Mabanag’s cruiser. When Mabanag and Batt got in the car, the senior officer quietly wrote a police report on the incident. Turning to Soriano, Mabanag said he was in trouble, and he had to sign and initial the report. The officer’s report, Hollister’s questions suggested, was only half complete; the two cops would finish the report after they had manipulated Soriano into signing it.
After Hollister finished, Mike Rains stood up to begin his cross-examination. If the former has cultivated an implacable persona, the latter’s style is considerably different: passionate, dynamic, yet strangely affable, even when setting up a hostile witness for the kill. As a former cop who spent years patrolling his own mean streets — and who notched his share of officer-involved shootings and misconduct complaints — Rains is intimate with the often delicate, occasionally brutal tasks his clients are asked to perform on behalf of the public. Since 1983, he has represented countless Oakland police officers in civil, criminal, and administrative hearings; every Oakland cop knows that if you get in trouble, you want Mike Rains in your corner. Now, as Mabanag’s counsel and the lead attorney for the Riders’ defense team, Rains is facing perhaps his greatest challenge: convincing twelve Oakland citizens that, despite the prosecution’s arsenal of evidence and testimony, these cops did nothing wrong.
“Mr. Soriano, good morning,” Rains began, disarming the witness with a detective’s glib ease and menacing focus. “Mr. Soriano, this officer that you described as the rookie officer who was there that night, came to your house, to your knowledge, sir, did he ever hit you?”
“And did he ever kick you?”
“Did he treat you okay that night?”
“Don’t have any reason to believe the rookie would lie on the police report or official statement concerning this event, do you?”
“So, sir, if … this rookie officer told the Police Department … ‘En route to jail, Soriano apologized and said, “Officer, the reason I acted like that is because someone threatened my family. I’m sorry. I didn’t mean to act like that. I already gone into three fights tonight.”‘ … If that rookie said that to the Police Department, is that a lie?”
“I guess so.”
With this exchange, Rains had already accomplished two goals. Few witnesses have more credibility than whistleblowers; their access to damaging inside information and the moral anguish they typically endure before coming forward makes them martyrs in service of a terrible truth. But by pointing out that Batt had helped finish Mabanag’s report on Soriano, Rains had managed to use the prosecution’s star witness against them. Suddenly it was the civic-minded, whistle-blowing Batt who was describing Soriano as a belligerent, volatile head case, who had picked a fight with two cops at two in the morning in one of the city’s toughest neighborhoods. As a bonus, Rains now had a prosecution witness calling Batt — whose testimony will be the centerpiece of the DA’s case — a liar. It was a tactic Rains would return to over and over. “When he said you had alcohol on your breath, he’s lying about that, isn’t he?” he later asked Soriano.
By the end of his cross, Rains had also shaken Soriano’s story a little. He dwelled at length on the 22-ounce bottle of fortified wine Soriano had drunk a few hours earlier, pointed out that he had never stepped forward to complain about the events of that night until OPD investigators contacted him. He also introduced the fact that Batt had told his superiors that Soriano had threatened to shoot his partner. All in all, it was an effective rearguard action. But when the case moves before a jury, Rains will have to do more than introduce some doubt into the proceedings. He will have to convince the jurors of his clients’ virtues and basic humanity, and of the terrible responsibilities they routinely shouldered on Oakland’s mean streets. In short, he will have to communicate his understanding of what it means to be a cop, an understanding he himself has been refining over the thirty years since he first pinned on a badge.
The headquarters of the Oakland Police Officers Association squats beneath the soot-laden I-880 overpass near Jack London Square, but its interior is sparkling white and freshly scrubbed. The faux-floral smell of industrial detergent is everywhere as miserable-looking Latino teenagers endlessly push mops around the floor of its spacious dining hall. Mike Rains is one of the few civilians who has a free pass to roam the rank-and-file’s cop shop, and he gets a slap on the back from every uniform he passes. It’s a constant affirmation of his firm’s slogan: “The ultimate backup.”
Settling down in the OPOA’s conference room, Rains tells the story of his life with a candor that is remarkable for a former cop. Perhaps it’s because of the pride he can rightly take in his current career; over the course of the last two decades, Rains has become perhaps the state’s most prominent police defense attorney. In addition to a bumper crop of high-profile misconduct trials, Rains’ firm represents more than eighty police labor associations in contract negotiations, and plans to open branch offices in Sacramento and San Rafael. Not bad for a man who discovered the law by accident.
“I never really planned to go to law school,” Rains says. “It was sort of a gratuitous thing. I got a scholarship from Long Beach State and actually went to law school while I was on the police force. Here was this scholarship for a police officer, and I thought, ‘Hey, I’d love to have a free education.’ I didn’t know what I would do with it, and I didn’t much care.”
While Rains hit the books by day, he spent his nights on “dogwatch” patrol with the Santa Monica Police Department, patrolling the city’s beaches by jeep. He found some time for surfing on the weekends, but mostly it was law school and law enforcement around the clock. “I was in patrol for six years,” he says. “People think Santa Monica is pretty slow and quiet, but actually it was a pretty active place, and the beach was an attraction for violence and drugs and everything. I got jumped several times by some pretty bad guys down there.”
In the eight years Rains was on the force, he was involved in a number of violent incidents, and was forced to shoot suspects twice. The great catalyst for violence in his day, he says, was PCP, so-called “angel dust.” “One of the shootings I was involved with was a guy that was dusted, and he stabbed one of my partners with a big bayonet,” Rains recalls. “That was a real violent situation. He was coming after me, he was coming after my partner, and he actually stabbed the other officer’s police dog. He ended up getting shot nineteen times, and he was still alive.”
Rains freely admits that he wasn’t always able to maintain his composure. More than once, he was disciplined for excessive force during an arrest, and these experiences informed his law practice in later years. Understanding the stress and adrenaline of such wrenching midnight encounters, Rains says, is essential to understanding the fear that can grip Oakland cops who are often forced to confront nightmarish urban landscapes.
“I never considered myself a perfect officer,” he says. “I considered myself representative: I had emotions, and I reacted to certain things. The academy doesn’t rid you of your basic human instincts, as much as they may try. You know: Once I was wrestling with a guy, and some other officers came in and were starting to get him under control. But I was pissed off, and I think I took a cheap shot. If they hadn’t have arrived, I don’t know that I could have subdued him on my own. But I hit him, I told the department what I did and said, ‘Yeah, it probably wasn’t necessary at the time.’ The department gave me some discipline, and I think it was deserved. Just knowing that I’d been there and done some of the things officers do today, I think it made me more understanding. In some cases, I still don’t know why officers do what they do, because they do far worse things than I ever did. But that job made me understand some of what it’s like to put on the uniform.”
As Rains’ reputation grew within the department, the Santa Monica police chief tried to assign him more legal duties, even as he was becoming more involved with union activities. Eventually, Rains decided that being a lawyer gave him the kind of independence he could never have in the department and he decided to defend cops for a living.
Rains had moved to the Bay Area in the late ’70s and joined the San Francisco firm of Carroll, Burdick, and McDonough. Although today Rains says that he considers Berkeley’s Police Review Commission (PRC) to be a model of civilian oversight, his new firm had just spent the previous decade in a war of attrition to destroy the PRC and any civilian authority over the police. These groundbreaking legal battles ultimately established civilian review of police as a fact of life in modern America.
Almost immediately after Berkeley passed the initiative creating the PRC in 1973, Carroll, Burdick filed a number of lawsuits to rescind the initiative, or at least limit its scope. The firm was partially successful in Brown v. City of Berkeley, which established that the city manager has the ultimate authority over the PRC’s rulings. But after Carroll, Burdick failed to bar public access to the department’s internal affairs investigations, the city’s police grudgingly accepted that civilian review was here to stay.
Berkeley civil rights attorney Jim Chanin coauthored the ballot measure that established the PRC, and he served on the commission for most of the next seven years. “[Carroll, Burdick lawyers] became hysterical, they slapped us with lawsuits, it was like the world was coming to an end just because I was going to sit in on a few internal affairs cases,” Chanin says. “I met with them over and over, and it was like talking to a brick wall. You couldn’t ever compromise with those folks. But the city manager and the chief were finally willing to defy the police association and stand up for civilian review. The unions had been able to torpedo civilian review all over the country, but because we didn’t go away, it gave other cities the nerve to try it there too.”
In 1983, Rains began his long career representing Oakland officers, first with Carroll, Burdick, and later on his own. In order to better represent his clients, Rains went on a series of ride-alongs through the city’s toughest neighborhoods; what he saw appalled him. “I thought I was a pretty tough guy, but then I went out with a few officers to get a sense of what this city’s like on the night shift,” he says. “And I was absolutely terrified out there. It was a whole different world. In Santa Monica, the folks on the street seemed to have a dialogue with the police. We’d talk to folks a certain way, even if it wasn’t always nice. But here, you’d have people getting right in your face if you’re a cop. It was a pretty scary environment. So there were some changes in my attitude about the way the police need to approach their job in this city.”
Many of Oakland’s cops, he soon discovered, were being consumed by their jobs. “Through the years, I’ve seen some very, very angry cops here,” Rains says. “Very angry about the way they’re treated, angry about the fact that they’re supposed to be out there getting bad guys off the street, but the community really doesn’t want the bad guys off the street. The politicians don’t, the chief doesn’t. And it makes them angry beyond belief. Where does that anger go? It either goes home with them, which isn’t a good idea, or it goes out onto the street with them, which also isn’t a good idea.”
Defending police officers is a peculiar industry, one of those rare occupations whose success or failure depends on the public’s mood. If a cop is accused of misconduct severe enough that it inflames the local press, district attorneys and police officials find themselves under the gun to prove they run a tight ship and are willing to crack down on such behavior. And of course, the city’s residents comprise the jury pool. Rains must constantly gauge the public’s shifting level of trust in the police; if the citizenry isn’t in a mood to forgive excessive behavior, it’s time to plead out.
According to Rains, the public’s impression of the police regularly swings between two poles: neutral and negative. If cops are doing their job, the public doesn’t have the occasion to think about them at all, but if they screw up, then all you ever hear is Mark Fuhrman. The nature of the relations simply depends upon the presence or absence of police misconduct. The other side of the story — the cops’ side — is seldom told.
Rains has a specific story he uses to make this point. In the spring of 1992, a young African-American parolee named Ronald Griffin accused Berkeley patrol officer Mike Cefalu and three other cops of a particularly nasty beating. Griffin complained that Cefalu handcuffed him and drove to a remote stretch of West Berkeley, where he and his fellow officers beat him unconscious. Shortly after Griffin made his allegations, the department put Cefalu on administrative leave and began an intense investigation.
The accusation couldn’t have come at a worse time for Cefalu. Just weeks earlier, a Simi Valley jury had exonerated the four LAPD officers at the center of the Rodney King beating, sparking riots not just in Los Angeles, but throughout San Francisco and Berkeley. Police credibility was at a historic low, and Rains confronted the unhappy prospect of convincing a jury that Berkeley was no Los Angeles. Worse, his client was no angel. In July 1988, Cefalu had been an Oakland cop assigned the graveyard shift. One night he and two other officers broke up a drug deal. The suspects scattered and ran, and Cefalu chased one man, who as it turned out, was an African-American cop working undercover. The officer, Derrick Norfleet, claimed that when he stopped and put up his hands, his fellow officers gunned their engine and ran him down. Then they piled out of the car, kicked Norfleet, and beat him with a flashlight, letting up only after they recognized him.
Oakland attorney John Burris, who specializes in police misconduct cases, filed suit against the city on Norfleet’s behalf, prompting Cefalu to quit and join the Berkeley department. When the new charges against Cefalu surfaced, Burris leaped at the chance to put the former Oakland cop under fire again.
Rains’ first task was to get ahead of public opinion. “The immediate fallout is that Cefalu is a racist; he’s been involved in other racist activities in Oakland, when he assaulted a fellow officer who was black,” Rains says. “And why did Berkeley hire him? This is a blight on Berkeley and its police chief, Dash Butler. And shame on them for taking this guy, and how did he ever get past the psychological, and on and on. And if you’ve got one bad cop working in the city of Berkeley, who else is bad?”
But Griffin’s story quickly began to fall apart. Police records indicated that two of the accused officers were actually writing a ticket elsewhere at the very time Griffin claimed they were beating him, and Griffin’s description of police batons and cruisers didn’t match Cefalu’s equipment. Eventually, a consensus emerged that Griffin, who had been busted by Cefalu a month earlier, had made up the story to cover up a crime spree that may have included a drive-by murder in San Francisco.
Burris and fellow attorney Jim Chanin were forced to call a press conference announcing that Griffin had decided to drop the suit, but they said that the reason was that Griffin feared retribution by the police, an explanation that Rains found utterly infuriating. Griffin had casually and falsely maligned a police officer and rather than owning up to it, his attorneys were hiding behind yet more slander. Fuming, he vowed before the press to sue Griffin and Burris for libel. “I’m filing any legal action I can to make up for the damages they’ve done to Cefalu in particular and to the other officers,” he told the San Francisco Chronicle. “Even now, they aren’t honest enough to admit these charges are false.”
If the incident reinforced Rains’ dislike of his adversary, John Burris, the feeling is mutual. “He said some things about me that reflected that he may have a personal dislike for me — something about demagoguery in representing my clients, and I suppose I have felt the same about him,” Burris says. “Rains took potshots at me, threatening to sue me. He didn’t sue, but he had made a lot of noise and took the opportunity to vilify me, a chance to reduce my credibility. Certainly I withstood the challenge.” (Before the legal actions surrounding the Riders case are settled, Burris and Rains will no doubt face each other across a courtroom again — this time in connection with a class-action civil lawsuit Burris has filed against the Riders and the city on behalf of more than eighty alleged victims.)
“The activists in Berkeley were calling for Cefalu’s resignation and going to the city council, so John was by no means the lone voice out there,” Rains recalls. “But a lot of the other voices, they hated the police, they were always screaming about the police. I thought they were probably not voices of reason to begin with, and why would they be reasonable now? But John, I thought, had always been a smart lawyer. He’s a smart guy, very experienced, and I would think he would wait before he leaps on this kind of thing. Some of the other voices didn’t have any credibility. That’s what upset me the most. I just thought he should have waited.”
In a way, the Cefalu case was a perfect gift for Rains and cops all over the East Bay. At a time when the Rodney King case had conveyed such a dramatic negative impression of the police, the public was hardly in a forgiving mood, and anything that conveyed a sense that the police could be falsely accused was a welcome counterpoint. Still, it would be years before Rains felt confident to take a case of excessive force before an Alameda County jury. “After the Simi Valley [verdict], we, as lawyers, were skeptical about taking any kind of excessive force case to arbitration or trial,” Rains says. “We were trying to settle these cases without putting them in the hands of anyone who would decide the fate of the officer.”
But some of Rains’ clients have had no choice but to brave the withering press accounts that accompany the most sensational trials. In fact, Rains claims that the biggest case in his career was fueled entirely by media hysteria.
In 1994, the Federal Bureau of Investigation began investigating charges that, for sport, eight guards at Corcoran State Prison were staging gladiatorial fights to the death between rival gang members in the prison yard. The news program 60 Minutes aired an emotional piece on the scandal, titled “The Deadliest Prison,” which included videotaped footage of correctional officer Christopher Bethea shooting inmate Preston Tate in the head. Rains, who represented Bethea in the subsequent trial, claims that this inflammatory broadcast lit a fire under the feds to charge ahead with the prosecution, despite the lack of credible evidence.
At first, it looked bad for the guards. The Department of Justice’s Civil Rights Division spent two years preparing to try the defendants. But Rains destroyed the prosecution’s case so handily that the jurors, who took just six hours to acquit the defendants, actually partied with his clients at a roadside motel later that night. In part, the prosecution’s case was hamstrung from the start; proving that a defendant has conspired to deprive citizens of their civil rights requires prosecutors to establish intent, and that is always an uphill battle. Rains was able to point to a Department of Corrections policy that required the integration of inmates from different ethnic groups and gang affiliations in exercise yards. It was this policy, he argued, that had resulted in the deadly violence. At the trial’s conclusion, jurors told the press that despite the pretrial buildup, they found the prosecution’s case completely without merit.
Clearly, Rains is facing a huge amount of damaging pretrial publicity in the Riders case, but he has beaten the odds before and his clients have walked away free men. When the case eventually comes to trial, he hopes that his acumen, skill, and experience will again convince twelve citizens that the men who guarantee their safety every day don’t do it by terrorizing their neighbors. Oakland City Attorney John Russo’s office will be watching the Riders trial very closely; the outcome of the criminal case will directly affect the city’s liability in the avalanche of civil suits filed in the wake of Batt’s disclosures by John Burris and others. Although Russo and Rains have a complex relationship — most of the time, the two are either fighting over a misconduct case or the Oakland Police Association’s next contract — Russo clearly respects Rains’ ability to tell the cops’ story effectively.
“Mike Rains understands police culture and can relate to people who put their lives on the line,” Russo says. “It’s a siege culture. Mike really feels that, because he’s been there. That’s the passion that he brings to his advocacy. Some people feel he’s too emotional, that he can be really hard to deal with. Well, some lawyers do fall in love with their cases. When I was a Legal Aid lawyer, I used to work myself into a lather too.”
John Burris is also much more than merely a litigant. Over the course of the last twenty years, in a variety of media appearances and in his 1999 book, Blue vs. Black, he has eloquently articulated a vision of progressive law enforcement. Only when police departments undertake a wide swath of reforms, he argues, including greater academy screening and training, universal acceptance of civilian oversight, and a renewed commitment to community policing, will there ever be peace between officers and black and Latino inner-city residents. “We teach officers now that they have to control a situation,” Burris wrote in Blue vs. Black. “They have to maintain control. They have to use force to do that. … But we also want them to have other skills that are usable as well. I think if they develop better communication skills, have the ability to de-escalate a potential hostile situation, they will develop a better understanding.”
Mike Rains also has a vision for how greater understanding between police and civilians might be forged, but it’s less a prescription for the reform of scandal-ridden departments than an appeal to the rest of the world to appreciate the fear, stress, and anxiety that police go through every day. There is no tougher, more delicate job than police work, he says, and nearly every case he tries hinges on his ability to transport jurors from the sheltered comfort of their lives and introduce them to the savage world that the men and women of the OPD must control.
“I suspect on an academic level, I wouldn’t disagree with John Burris’ view of a perfect law enforcement officer, or what perfect law enforcement response is,” he says. “But I just don’t know how you expect officers to be perfect. I don’t know how you send them out on the streets every night and have them put up with what they do, and expect them to approach everybody on an even-handed basis. When you’ve got the violence, the drug-dealing, when you’ve got that wall on Seventh and Broadway with the names of all those officers who have been shot down — and I’ve known far too many of them through the years — when you’ve got that reality there, all of the notions of what a perfect law enforcement officer is won’t carry the day.
“As a lawyer for the cops in Oakland, one the toughest things I have to do is to let the people who are going to sit in judgment of an Oakland officer know about the true vulgarity, the violence, the filth, the degradation, everything that happens to an Oakland officer on the street. They have to know what has led to an officer’s psyche, his outlook. We need to take a snapshot, to tell the people about what it’s like to go out to 32nd and Chestnut at eleven at night in the summer, to tell them about the fear and the terror that anybody other than a drug dealer feels there. Every single day, cops deal with the emotions of going to work, of leaving their family, and not knowing if they’re coming home at night, the emotions of encountering poverty and drug-dealing.”
Oddly, although Rains is convinced the police inhabit a twilight world that few of the rest of us can ever truly appreciate, he has come to support the concept of civilian oversight and the importance of civil rights attorneys as an outside brake on a system that would otherwise be left to police itself. The only problem with civilian authority over the police, he says, is that all too often politics poisons the integrity of what is supposed to be an impartial adjudication.
“The great failure of civilian oversight over the years has not been the academic approach to it, but that often the individuals on the panel are there with a mission, a philosophical leaning to begin with, rather than one of ‘Let’s look at each case to see whether the cops did a good job or a bad job,'” he says. “I remember one [Berkeley] commissioner who said, ‘I’m here to represent the Hispanic community in Berkeley, and by God, we’re not gonna let the Hispanic community get set upon by the police.’ Well, if you’re there as a commissioner to listen to police misconduct, you’re there to hear the facts and make a fair decision.
“In Oakland, we still have some who think their job is to sustain allegations. And the cops become mistrustful, they show up and get attacked and cross-examined, they get belittled, they don’t want to be part of that. That’s why civilian oversight has been so ineffectual, because the people that get the decisions know that they are [compromised by partisanship]. They can’t politically come out and say it, but historically, most of these review boards, their decisions have been given very little weight by city leaders. Frankly, if you had a good board, if you had folks who were truly committed and fair, then when you had a complaint sustained against a cop, it would truly lead somewhere.”
Although Rains supports the fairly radical notion of civilian review, he is steadfastly opposed to the much tamer, more collaborative program known as community policing — which is odd, since the East Bay is one of the few areas in the country where community policing has sporadically worked, particularly in North Oakland. But for Rains, community policing is just one of countless civilian ideas that is too innovative for its own good — indeed, he considers it to be little more than liberal window dressing.
“I harken back to a conversation I had with [former Oakland Police Chief] George Hart. And he said, ‘Mike, I can’t run the department anymore. Because the City Council or the mayor will call me up and tell me I’ve got to institute a new program to do this, and tomorrow, I’ve got to institute a new program to do something else. And all we’re doing is we’re running around, trying to be a showpiece for the politicians, rather than a police department responding to crime.’ I think community policing was one of those sort of PR things, that became a good buzzword. But in the final analysis, it was destined to be a failure.”
In fact, Rains’ opposition to community policing verges on outright contempt. “The question is: Could the money be spent more appropriately somewhere else?” he says. “It gets you back to the ultimate problem of where you devote your police resources. And where you need to devote them is to those areas of the community that produce the most problems. So who are you gonna send? The great communicator? The great PR officer? The ‘Let’s be touchy-feely and have a relationship’ officer, and let’s know your problems? To what end? Where does that get you, ultimately? Maybe that develops a system of informants, but then you’re right back to the standard police work. Until you break the cycle of poverty and violence, and until you get education and other positive programs going, I don’t know that community policing is ever going to accomplish a damn thing.”
Some parts of town, Rains says, are just too tough to pussyfoot around with community policing. You need officers who are willing to stare evil in the face, because there are evil men in the world, and many of them are walking the same streets the Riders patrolled. There’s a certain Manichaean quality to Rains’ outlook: No one can truly understand the police, thus the community can never hope to authentically collaborate with the cops. Despite the opinion of activists like Copwatch or PUEBLO who simply live to hate the police, most bad guys are beyond redemption.
Perhaps Rains must adopt this posture if he hopes to explain his clients to the rest of the world, but that’s the paradox of Mike Rains: He appeals to the world to glimpse the humanity behind the badge, yet — or so his critics claim — he denies that same humanity to so many others. “Rains and his clients are exactly what they accuse their opponents of being,” Jim Chanin says. “The polar opposite of Michael Rains isn’t me or John Burris; Burris and I turn people down all the time, because we think the cops did the right thing. The exact opposite of Rains is some anti-police person who never saw a cop they didn’t hate. Both of them are united in their belief that the other lacks humanity. Rains and many of his clients don’t see their opponents as human beings. He has the same perception that I had when I was 21 years old in 1967: There’s the people on the one side and the police on the other. That was my view in 1967. But that’s not the way I am now. It boils down to this: Are you treating people with dignity, or is everyone who doesn’t agree with you the enemy once you put on the uniform?”
I asked Rains if he agreed that the ebbing of the crack plague and the drop in violent crime has made life in Oakland any safer. “I don’t think things have gotten better for the cops,” he replied. “I don’t think the cops think things have gotten better. A former Cal professor named Jerry Skolnick once wrote a piece in which he mentions a memo written by Chief George Hart to one of his confidants in the department. In the memo, Hart said that the true measure of our effectiveness isn’t our crime rate. It’s not arrests, really. It’s are the streets free of bad guys? What do the streets look like?”
The problem is that however commendable this commitment to totally rid our streets of crime sounds at first glance, in practice it amounts to a blank check for the police: If the streets are not completely safe, we will have to grudgingly agree to give the cops extraordinary leeway.
“His perspective is legitimate,” John Burris says of Rains, “but it’s not a social policy perspective. It’s legal advocacy. Basically, he’s a person who represents police officers. That’s his job, his bread and butter.”
When Rains got up to cross-examine Keith Batt in the Riders’ preliminary hearing, he had a lot of work to do. Batt had painted a picture of four cops gone bad, a dark fraternity of cowboys who broke rookies in by implicating them in beatings and fraud. Batt testified that the first time he met Riders ringleader Frank Vasquez, he was told, “If you’re a coward, I’ll terminate you. If you’re a snitch, I’ll beat you myself. And if you’re a criminal, I’m putting you in handcuffs, put you in the back of my car, and take you to jail myself.” Then he repeated his pet phrase: “Snitches will lie in ditches.”
Over the next several hours, Rains tried to alter the portrayal of Batt from valiant whistle-blower to disgruntled incompetent who, for petty personal reasons, had fabricated an elaborate epic of misconduct merely because he couldn’t take the hazing that all rookies must endure — hazing aimed at giving newcomers the edge they will need if they are to survive on Oakland’s mean streets. Batt made the whole story up, Rains suggested, because officer Clarence Mabanag was mean to him.
In the upcoming trial, Rains will rely on two main arguments: that Batt couldn’t hack it and concocted this story merely to cover up his inadequacies, and that what he claims is misconduct is merely the proportionate means of force needed to safeguard the streets of West Oakland.
Citing the enormous publicity this case has garnered, he will begin by asking for a change in venue. When asked what kind of people he’d like to see in the jury, he said that his main worry was that this trial will take months. That means only two kinds of jurors will be available, he said: government workers and the “chronically unemployed” — neither of whom will be favorably disposed to the story he will need to sell. For in the end, Rains must once again be the articulate voice of the OPD’s rank-and-file, the man who can express the mute dissatisfaction of Oakland officers, and the terrors they suffer and the stress and anguish on the streets when, after being ordered to crack down on crime in the streets, they are prosecuted and reviled for doing so.
If, for so many people, the Riders are the undeniable smoking gun of police misconduct, a unique window into a violent and reckless underworld, Rains has no choice but to convince as sympathetic a jury as he can seat that the Riders love their mothers, live in fear — and were asked to shoulder a terrible burden on behalf of us all.
“There are wonderful, well-intentioned officers who go out there every night and put it on the line,” he says, “and I don’t know what for. I don’t think the money’s worth it; I don’t think the thrill of it all is worth it; I don’t think the gratitude they get is worth it. What we get back to, in the case of the Riders, is that in certain areas in the city, the police ultimately haven’t been very successful in getting rid of the drugs and the violence that have been here forever.
“Go hear Jerry Brown’s speeches about how we’ve got to rid the community of this blight. We’ve got the mayor of the city saying, ‘We gotta stop this. You’ve got to do something about this.’ Then the police chief and all the managers are saying, ‘Get out there and be aggressive, we’ve gotta make the streets decent for all the good, law-abiding people who live in these communities.’ And they do. And in many cases, they’re left out there to use their own devices, their own discretion, their own best intuition. They have precious little tools other than that. So they do the best they can, and then along come the allegations: ‘We told you to go out there and dance along the line, and you fell off and went over to the other side.’
“That’s exactly what we’re dealing with in the Riders case.” own best intuition. They have precious little tools other than that. So they do the best they can, and then along come the allegations: ‘We told you to go out there and dance along the line, and you fell off and went over on the other side.’
“That’s exactly what we’re dealing with in the Riders case.”