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March 18, 2005

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Palo Alto Online

Publication Date: Friday, March 18, 2005

Report: Cops' actions 'text-book perfect' Report: Cops' actions 'text-book perfect' (March 18, 2005)

Deputy D.A. withheld document for a month

by Bill D'Agostino

The attorney prosecuting two Palo Alto police officers did not hear what he wanted after asking San Jose police Sgt. Jeff Martin to review the case in January.

In an 11-page report, Martin argued the officers acted in a "text-book perfect" manner while handling motorist Albert Hopkins.

After receiving the report, Deputy District Attorney Peter Waite failed to notify attorneys representing officers Michael Kan and Craig Lee about the document until approximately one month later. The defense attorneys argue Waite, who hoped Martin would be an expert witness for his side, was required to share the report.

Kan and Lee, are facing a felony assault charge and a misdemeanor battery charge related to a July 13, 2003 incident where they pepper-sprayed Hopkins and beat him with batons.

Jury selection began on Monday and was not completed by the Weekly's deadline.

Hopkins, who said he suffered knee damage from the attack, was never charged with a crime in connection to the incident.

Martin's report, however, argued Hopkins could have been charged with resisting or obstructing a police officer. According to the sergeant's interpretation of the events, officers Kan and Lee acted with discretion while handling Hopkins.

In the past, Hopkins has accused the officers of targeting him because he was black. Waite, who was unavailable for comment, is accusing the officers of using force without proper justification.

Whether the jury will ever see Martin's report or hear from him on the witness stand is still an open question. Santa Clara County Superior Court Judge Andrea Bryan had not ruled on the issue by the Weekly's Thursday deadline, but was expected to do so. The judge had earlier ruled against the defense's desire to include other expert witnesses.

Martin is a 20-year veteran of the San Jose Police Department who trains officers in the correct use of force and has frequently testified in police brutality trials. His report on the Hopkins case is based on police accounts, the Palo Alto Police Department's internal investigation, a written statement from a witness and transcripts from the preliminary court hearing.

According to Martin's report, Lee saw Hopkins sitting in a gray Honda near the corner of El Camino Real and Oxford Avenue in Palo Alto around 10:30 p.m. The officer was patrolling the area because of a high number of burglaries reported in the region.

When Lee approached and asked Hopkins if he was OK, Hopkins was immediately belligerent, according to the report. Hopkins allegedly cursed at Lee, accused him of racial profiling and demanded that he go away, the sergeant wrote.

(Hopkins is black; both of the officers are Asian-American.)

Although Lee did not initially ask Hopkins for identification, the officer eventually did so and was refused, according to the report.

When Lee attempted to explain his report, Hopkins "suddenly and rapidly (could even be interpreted as 'violently')" opened his car door and stepped outside, Martin wrote.

Lee then got out his pepper-spray and told Hopkins to sit back down or get sprayed, according to the report. Hopkins dared Lee to do so. Soon after, Kan showed up.

The two officers talked briefly and then Kan ordered Hopkins to get out of the car. When Hopkins refused, Kan tried to forcibly remove him. When that failed, both officers pepper-sprayed Hopkins, who then left the car but failed to get on the ground as ordered. Lee sprayed him again, while Kan radioed for assistance.

"If this was a case of two officers unreasonably beating Mr. Hopkins, why would they stop to call for help?" Martin asked in his report.

Hopkins then got into a "combative fighting stance" and started "growling/grimacing" at the officers, the report noted.

"This also makes it reasonable for the officers to transition to their batons in order to try to take Mr. Hopkins into custody and overcome his resistance," Martin argued.

Although the officers beat him, Hopkins still would not get on the ground and even managed to briefly grab Kan's baton, the report stated.

When Hopkins finally obeyed, the officers stopped hitting him and pulled out the handcuffs, Martin wrote. They also immediately called for a supervisor and paramedics..

The report also stated that Hopkins, despite being 59-years-old at the time, was very strong and physically fit. According to the report, he was 5-foot, 11-inches tall and weighed 175 pounds; Kan was 25 years old, 6-feet tall and 145 pounds; and Lee was 40 years old, 5-feet, 9-inches tall and 170 pounds.

"In conclusion, it is my opinion that the officers used measured, restrained force in taking Mr. Hopkins into custody," Martin argued. "When the resistance ended, so did their use of force. I could see myself taking very similar actions.

"In fact, as a former academy instructor, I would call it 'text-book perfect.'"

The officers' attorneys in the trial believe Waite was required to share the report, which they called "exculpatory evidence" that could exonerate their clients.

The U.S. Supreme Court decision Brady v. Maryland makes it a violation of due process for attorneys to withhold such evidence, argued Harry Stern, the attorney representing Kan.

Martin sent his summary to Waite on Feb. 13, but the defense attorneys said they were not notified of the report until March 14 at lunchtime. Waite was unavailable for comment.

Staff Writer Bill D'Agostino can be e-mailed at [email protected]

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