Confederate Yankee: The Erik Scott Shooting: Update 3

Since the second update, many interesting developments have come to light and many questions have been answered, or at least, more informed suppositions can reasonably be made. However, complete and accurate original source videos and audio and transcripts are still not available, making accurate analysis difficult. Sadly, far too many of the details remain unknown, and perhaps, purposely or even criminally so. In update four of this series, I’ll get into more specific analysis of an audio/transcript of the initial 9-11 call from Costco security employee Shai (pronounced “Shay”) Lierley to a metro dispatcher, and will try to synchronize a partial transcript of police radio traffic to that 9-11 call to produce a more complete picture of events. This update, the third, will deal primarily with analysis of Inquest testimony and related issues.

Readers commenting on the first two installments have raised concerns about the relative veracity of police officers and lawyers in interpretation of the issues relating to this case. Each has an important role to play in the criminal justice system, and sometimes, those roles overlap, to the discomfort of all involved. Perhaps it would be useful to address an issue that will become more important as the case goes on: The relationships of lawyers--defense and prosecutorial--with the police.

Police attorney relationships are far more complex than one might imagine, and seldom anything like those depicted on TV police dramas. Describing them as love/hate relationships might be a good baseline for further consideration. Attorneys generally consider themselves to be more educated and thus, more intelligent than police officers who by comparison often have no higher education. While more and more police agencies are requiring at least an associate’s degree (two years of college), a substantial portion of American police officers have only a high school education.

This is not, in and of itself, a bar to excellence in law enforcement. In many ways, excellent officers are born with a particular set of genetic endowments that give them distinct and obvious advantages over others regardless of their respective amounts of higher education. Simply put, some people are just born better capable of excelling in some jobs than others. While a reasonable argument can be made that an undergraduate degree has the potential to produce a well rounded individual with a broad base of potentially useful knowledge, common sense and street smarts tend to trump a bachelor’s any day in police work. At the same way, law schools produce graduates with a very wide range of practical abilities. Abraham Lincoln, for example, was known as an outstanding lawyer, but spent not a day in law school.

Some attorneys find it difficult to see police officers as professionals, looking down on them in very real ways. Police officers tend not to respond well to condescension, and this can lead to real tension in the relationships between officers and prosecutors in particular. It should not be assumed that prosecutors are automatically friends and colleagues of the police, and it should surely not be assumed that they will, always and in every case, support or cover for the police. This makes perfect sense if a given prosecutor believes officers to be lower than him or herself on the evolutionary ladder.
However, it can almost always be expected that defense attorneys will have an adversarial relationship with the police. The old maxim stands true: If the law and the facts are on your side, argue the law and the facts. If not, attack the police. Lawyers on all sides are supposed to seek justice above all, but some defense attorneys are predisposed to believe that the police are dim witted perjurers and brutalizing racists, and feeling the system thereby stacked against themselves and their clients, sometimes cut corners to try to even the playing field that they perceive is tilted in the prosecution’s favor. Such male lawyers often wear ponytails. Go figure.

It may also be useful to consider that most attorneys are not, in fact, expert in the Constitution and the law as it applies to the criminal justice system (as in medicine, lawyers generalize or specialize), and that many police officers may often have more practical knowledge of specific statutes, procedures and methods than many attorneys. In my final police assignment, I was a detective specializing in stalking and the burglary of vehicles. In that role, I of necessity learned a great deal about the related statutes, court precedent relating to search and seizure, psychology, the applicable insurance statutes and many other esoteric bits of knowledge. Knowing this, prosecutors--and sometimes defense attorneys--often asked questions about where to find specific statutes, their interpretation and application and related issues. I doubt that any of them considered me a law enforcement Einstein (nor did I), but they were practical enough to consult a useful, available source. Wise men know and accept, above all, what they don’t know.

With this in mind, can any meaningful conclusions be drawn from the apparent relationship of the Las Vegas prosecutors and the Metro Police? Can reasonable inferences be made based on the performance of the police and prosecutors in the Coroner’s Inquest and the eventual verdict? Indeed they can.

GENERAL IMPRESSIONS OF THE INQUEST TO DATE (09-24-10):

Scott has been overwhelmingly portrayed by prosecutors as a drug addict so badly and visibly impaired by drugs that he was prostrating himself on check out conveyors, throwing merchandise about the store, threatening and alarming staff and customers, and who, when confronted by police, drew and pointed a weapon at them, causing them to immediately shoot him seven times, according to Dr. Alane Olson a medical examiner with the Las Vegas Coroner’s Office. Two rounds initially fired by Officer William Mosher struck Scott in the chest, and five fired by Officers Joshua Start and Thomas Mendiola, struck him from the rear, including one that entered Scott’s buttocks, traversed his bowels and lodged in his chest. These five bullets, but particularly the bullet that entered Scott’s buttocks, will figure prominently in the future. Olson also testified that Scott had “lethal levels” of Morphine and Xanax in his blood.” However, several witnesses contradicted the prosecution’s tone and theory. Because no cross examination of witnesses was allowed, it’s difficult to tell with certainty if these statements were an unexpected and unwelcome surprise to the prosecutors or were included in an attempt to provide the appearance of balance to the televised proceedings.

SOME EXAMPLES OF TESTIMONY SUPPORTING THE PROSECUTION THEORY:

Arlene Houghton, a cashier, said Scott lost his balance and “tumbled onto a checkout conveyor belt, ” and that Samantha Sterner, Scott’s girlfriend, propped him up on a shopping cart. Houghton said Scott’s face was flushed, his eyes unfocused and glassy. “He turned around and looked at me and said, ‘I guess I really am (expletive)-up,’ and they walked away.”

Cashier John Nikitas said Scott knocked over a sign. “He told the lady with him, ‘I told you I should not be in this effing place when I’m this drunk.’”

Coleen Kullberg, a part time Costco employee was leaving the store and saw Scott staring at an officer who told him to get on the ground “at least five times.” She said “he reached behind him and pulled out his gun and aimed it at the officer...at that time the officer shot him.” Kullberg described Scott, just prior to being shot: “He was like dazed. He was just looking at him. He wasn’t obeying any of his commands.”

Security Officer Shai Lierley and Assistant Manager Vince Lopez spoke with Scott separately and told him that his gun wasn’t allowed. According to Lopez, Scott became “extremely agitated,” and told Lopez “...it’s a (expletive)-up policy and he continued to say he was a Green Beret, he could carry a gun wherever he went, and he wasn’t going to put up with that.” Lopez also testified that Scott imitated a gun with his hand, put it to Lopez’s head and said that if someone really did that, he would take care of the situation.

Customer Annette Eatherton saw Scott, being confronted by the officers, reach for his waist, and heard an officer say, “‘don’t do that, don’t do that,’ and he did it and they shot him.” After the first shot, Eatherton saw a gun in a “gun rug” fall to the ground in front of Scott. Annette’s husband Wentworth gave similar testimony but thought that Scott was trying to disarm, not shoot.

SOME EXAMPLES OF TESTIMONY CONTRADICTING THE PROSECUTION THEORY:

Edward Fishman heard an officer order Scott to “drop it,” and heard no other commands. He could not see anything in Scott’s hands and saw Scott reach toward his side, his shirt came up, and he was shot. Fishman did not see or hear Scott take an aggressive stance, point anything at the officer, or say anything. Fishman, a physician, said that after being shot, Scott’s hands were above his head before he fell to his knees and then face down on the ground. Fishman did not see anything drop from Scott’s hands or anything on the ground near him.

Fishman watched an officer handcuff Scott, but no one checked his pulse. Fishman testified that he was so shocked and surprised that none of the officers did anything to help Scott that he was to afraid to approach and ask to assist.

Customer Wendy Wolkenstein saw an officer with his gun drawn confront Scott outside the store. The officer was yelling at Scott to get down on the ground. Herding her children behind cover, she saw Scott’s elbow move back toward his waist or pocket and the officers fired. Looking back at Scott, she saw his hands in the air. She did not hear Scott say anything to the officers, but his back was to her.

Scott’s girlfriend, Samantha Sterner, did not testify, possibly on the advice of her attorney, who told the media that she was anxious to testify, but not in a one-sided forum. Prosecutors instead played a recording of her statement to police made after the shooting.

Sterner told the police that Scott was acting normally and his interaction with Costco employees was “amicable,” though she said she wasn’t present for all of those interactions. She did tell Scott, as they walked toward the exit that he was probably the reason for the evacuation, and he seemed “surprised.” Sterner saw an employee point out Scott to a uniformed officer as they stepped outdoors.
“He (Officer William Mosher) immediately draws his weapon and tells him to get on the ground,” Sterner said, adding that Scott put his hands up, intending to disarm. Sterner screamed at the officers that Scott was in the military and had a concealed weapons permit. She told them not to shoot, but when Scott raised his shirt to reveal the gun and “...grabbed it to put it on the ground...”Mosher fired. Sterner believes that Mosher “...was too aggressive...” and believes he would have fired no matter what Scott did. "I just think that this officer was out of line,” she said.

TESTIMONY OF SCOTT'S PERSONAL PHYSICIANS:

Dr. Joseph Gnoyski did not believe that Scott was a drug seeker and took drugs to deal with pain, the treatment of which is Gnoyski’s speciality. He testified that Scott had a physiological dependency, and that over time, he was getting better. Of the three testifying physicians, only Gnoyski testified to ordering an MRI or similar diagnostic test for Scott. The MRI indicated that he did have back damage, which Gnoyski attributed to a “paratrooping accident,” “a football accident,” and “a more recent automobile accident.”

Gnoyski said “This guy [Scott] works out every day. It’s not like he is seeking a buzz just to lie around...I don’t believe this man was trying to get a buzz...It just doesn’t mesh with his character.” Gnoyski described Scott as an "elite athlete."

During a casual visit to his office, Gnoyski felt that Scott appeared groggy. “It wasn’t like he was out of control, that he was going crazy.” Gnoyski drafted a letter to terminate their relationship, but changed his mind. Gnoyski said “I have a lot of respect for him.”

Dr. Shari Klein treated Scott for about two years, until about ten months prior to the shooting. Klein testified that Scott, at some point, suggested that she prescribe Hydrocordone, but she did not prescribe that particular medication. She said that Scott stopped seeing her when she began a concierge practice (where a physician sees a limited number of patients, charging substantially more for the individual treatment) and he could no longer afford her.

Dr. Daniel Kim testified that he began treating Scott on 02-02-10 for chronic pain. Kim prescribed medication but felt that Scott was taking too much: “He doubled up everything that I gave to him.” Kim, who felt that Scott had an addiction to Hydrocordone, terminated Scott and gave him a list of detoxification centers. Kim would not agree that interactions with Scott led to Scott’s being shot but thought that he might have more forcefully suggested detoxification.

TESTIMONY ANALYSIS: This testimony attempts to portray Scott as a man so under the influence of drugs that he could barely stand, yet he also reportedly said that he was drunk, though the sources consulted for this article did not mention the presence of alcohol in Scott’s blood. Significant in the testimony of the doctors is the absence of the common behavior of drug addicts who try to trick multiple doctors to simultaneously prescribe large amounts of narcotic medications. Scott apparently sought out medical treatment for intractable pain, which was actually physiologically based, and worked with single physicians in turn.

Most witnesses testified that Scott not only did not respond to officers, but drew his weapon and pointed it at the officers, though one saw only an elbow moving toward Scott’s back and saw Scott’s hands “in the air” moments after being shot. Officer commands heard by witnesses range from “don’t do that; don’t do that,” to “get on the ground,” and “drop it,” but no clear picture was drawn of the time frame or circumstances, including which of the three officers made these statements or why.
Only one of the witnesses saw a gun “in a gun rug” fall to the ground. The others did not see a gun or see Scott point a gun at the officers. According to police testimony and a photograph produced at the Inquest, Scott’s .45 ACP 1911 type handgun at some point and in some way, made it to the ground somewhere near him and was photographed by police, reportedly where it was found. The weapon displayed in the photograph was still fully in its inside the waistband holster, cocked and locked (the most common method for carrying this type of handgun, with the safety apparently still on. What is most interesting is that the holster completely enclosed the trigger guard and trigger of the weapon on both sides of the frame. In order for Scott to have fired the weapon, he would have had to push his trigger finger between the leather, which was still likely tightly molded to the frame of the weapon, and the frame, snap off the safety--which was also at least partially, possibly fully, covered by the holster--with his thumb, or more likely, would have had to remove the holster, which would have taken a very emphatic and forceful downward flinging motion if made one handed, or most likely, would have required that Scott grasp the holster with his left hand to pull it from the handgun. Either option would have taken very obvious movements and time, time which Scott was not afforded. None of the witnesses testified to this. The testimony to date seems to support Sterner’s contention that Scott, surprised and trying to respond to conflicting commands delivered simultaneously and in a matter of seconds, was trying to disarm.

 What is also missing from the media accounts is any time frame. A man removing a weapon to disarm himself does not move with the speed and obvious intent of a man trying to bring a muzzle on target to fire, yet there has been apparently no attempt by the prosecution to clarify this point. One might argue that an officer cannot be expected to tell the difference between a holstered, safed handgun being voluntarily surrendered and an unholstered handgun being brought rapidly, aggressively onto target, but this kind of situation is common in shoot/don’t shoot training and officers are expected to be well trained and calm enough to take the few fractions of a second necessary to be sure before firing. It is not easy, but no one is forced to become a police officer.

What is also remarkable is that while the prosecution and police have acknowledged the firing of seven rounds and at least generally accounted for the final resting places of those rounds, there has been no statement about the possible firing of additional rounds and where they came to rest. This is significant in that studies have uniformly found that in officer shootings, commonly less than 30% of rounds fired by officers strike their intended targets. Are we to understand that these three officers fired only seven rounds, and that all seven were hits? This would be particularly amazing if any of the rounds were fired after Off. Mosher’s original two rounds struck Scott in the chest. At that point, Scott fell to his knees and then onto his face, which presents another significant problem for the police and prosecution.

At the time of the shooting, Off. Moser, 38, had been working for LV Metro for approximately five years and one month. Media accounts have not indicated if he had prior law enforcement experience, but do speak of his involvement in one prior police shooting. This is also significant, but more on this shortly. Off. Joshua Stuart, 28, had been with Metro approximately one year and 11 months. Again, I’m unaware of any prior police experience. Off. Thomas Mendiola, 23, had been with Metro approximately one year and four months. Considering his age, it would have been unlikely that he had any prior police experience as 21 is the minimum age for police service virtually everywhere.

We do not, as yet, know exactly where the officers stood relative to Scott, or their distances from him at the time each shot was fired. Did they remain stationary until shooting ceased, or were they moving as they fired? We still do not know why they fired after Mosher’s initial two shots. Most disturbing, however is the improbability of Scott taking five rounds in the back under the currently known circumstances. The only reasonable scenario presented by the evidence known to the public is that Scott was facing all three officers who were also facing him. We can assume that the officers, two of whom had little apparent time on the job (this is a significant issue--ask any experienced cop), may have tried to move to one side or the other, remembering basic tactics, but all were likely oriented facing Scott, with one or two perhaps at a slight angle to his sides. All the testimony indicates that after the initial two shots, Scott dropped to his knees and then, fell forward, toward the officers, onto his face. Struck twice in the heart, he was likely rapidly bleeding out internally, and rapidly dropping blood pressure may have rendered him more or less immediately unconscious.

How then is it possible that he took five additional rounds in the back, and who fired them? Did any of the officers very quickly move around Scott, placing Scott between himself and his fellow officers? Did they fire while he was falling, or more likely, only after he was already face down? The Medical Examiner testified that she could not tell the distances from the muzzles of any of the shots, nor do media accounts reveal the tracks of any of the rounds, with one exception.

It is reasonable to believe, particularly with the unusual, one might say, phenomenal quality of the marksmanship displayed by the officers that they were quite close to Scott, which is, in and of itself, very significant. Let’s assume for the sake of an experiment that Scott is face down, his head toward the officers. Pace off ten or twelve feet--the width of many rooms in many homes--and, placing a friend, or if you’re a bit squeamish, a pillow, on the floor in Scott’s position relative to the officers, and point your imaginary handgun at the target. At even that distance, the human back is a small, hard to hit target and any rounds fired would travel downward, likely lodging in the pelvis, buttocks, or even the thighs. In any case, the bullet tracks would be at a steep angle and would traverse a great deal of the body unless they struck large bones. Moving closer to the target, notice how the angle changes, until, standing over the body, the target becomes much, much easier to hit--the distance from muzzle to body being two feet or less--and the bullets would traverse the body at an approximate right angle.

For the prosecution’s theory, however, the most vexing problem is the bullet that entered Scott’s buttocks, traversed his pelvis and lodged in his chest. Unless the muzzle of the handgun that fired the round was near the ground when the round was fired, it’s hard to imagine how this could have occurred unless the officer was not only behind Scott when the round was fired, and thus had placed Scott between himself and the other officers--a virtual circular firing squad all officers are taught to avoid at all costs--but was also diving to the ground or on the ground at the time. One other possibility is that the round was fired by a standing officer, and the bullet, striking the pelvis or spine, was deflected on an internal path parallel with Scott’s prone body, but the ME did not so testify, and the problem of how an officer, in what was a mere handful of seconds, was able to maneuver into a position that would make any of this possible still exists.

Off. Mosher’s reported prior shooting, which was apparently found to be justified, is of interest because the overwhelming majority of police officers complete their careers without having fired their weapons at anyone. Thus, the officer who has had to shoot a suspect on even one occasion is, in most police agencies, unusual. An officer who has shot two or more, in a short span of years, is even more unusual. This does not in and of itself prove wrong doing on the part of such an officer. Perhaps he was merely unlucky. Perhaps he worked in high risk areas, or in an assignment that made violent confrontations more likely. But the fact that this was Off. Mosher’s second shooting should cause anyone investigating this case to be extra careful to pay attention to detail, as should any prosecutor charged with reviewing the case in making a charging decision because thankfully, Off. Mosher is in an exclusive class among American police.

Some commenters have suggested that police officers look for opportunities to shoot citizens in a soft of bizarre initiation rite. Thankfully, the statistics, and experience, do not bear this out. Indeed, officers wonder how they will perform in a deadly force encounter, perhaps even hope that they might have the chance, but there is nothing sinister in this. In fact, they are repeatedly confronted with this issue in employment interviews and training. They have to consider such issues and be willing to run to, rather than away from, the sound of gunfire. Any officer who has asked him or herself whether they can and will fire at another human being, possibly taking their life, if necessary, and who has not answered firmly and affirmatively, is a danger to them self and the public. Officers are comforted by the knowledge that the odds are on their side; it is unlikely that they will ever find themselves in that situation. Still, type A, adrenaline fueled personalities--and in many respects, that’s who we want for police officers when maniacs intent or rape or worse are breaking into our homes--will wonder, and anticipate and train hard to be prepared if the worst ever comes to pass. That is what we pay them to do. And they will pray that they do the right thing and go home that night when their shift is done.
One of the fundamental questions in this case is whether any Costco employee actually asked Scott to leave the store and if so, his response to that request. It is reasonable to believe that if anyone representing Costco had asked Scott to leave at any time, the police would have noted it and the prosecutor would have been sure to secure such testimony, but thus far, this does not seem to be the case. Considering the very negative thrust of the other evidence presented to Scott’s detriment, if such evidence, of an angry, armed man refusing a lawful order to leave the premises existed, surely it would have been made public at the inquest, but it has not.

Also interesting is the exclusive testimony secured by Confederate Yankee regarding Scott’s character by a competitor of Scott’s. This testimony, which was not produced during the Inquest as the witness fears Metro and prosecutorial reprisal, does not support the negative character sketch drawn by the prosecution.

As expected, no Costco or other video was presented at the Inquest. Recent information indicates that the police will claim that all of the Costco video from every camera that might have captured an image simply does not exist due to an technical malfunction known to Costco before the event which was not corrected until after the event. While this is possible, one would surely be forgiven for questioning the convenience--for the police--of this kind of coincidence, particularly when such video has the potential to unambiguously resolve the central issues in the case. Whether any police recordings exist may never be known. At the very least, media outlets may be able to provide footage which indicates whether any police vehicles potentially equipped with video were pointing toward the area of the shooting. Most police video cameras are focused through the windshields of patrol cars. If it can be established that any police vehicles were pointed in that direction, the possibility of police video exists.
A quick side note in response to several posters: The criminal justice system is often behind times in adopting standards of evidence that reflect the latest, greatest technology. In all matters of evidence, original sources and items are virtually the universally required standard, though judges do usually have some flexibility in interpreting the related statutes. However, that interpretation will almost always take place long after evidence is gathered. The police will reasonably believe that they are required to gather original materials and sources unless they are absolutely certain that copies will suffice.
The potentially missing video remains, at the very least, a public relations disaster for the police, and one which may not go unnoticed by local political leaders. The Law Vegas Review-Journal reported on 09-25-10 that Clark County Commissioners were concerned by the “skewed” proceedings and would form a committee to review potential changes in the Inquest system to allow a more adversarial approach more likely to expose all of the relevant facts necessary to produce a fair result. In response, prosecutors said that in a more adversarial hearing, “police officers might not testify.” This should be cause for real public concern in that any prosecutor knows that officers have no choice about such matters and are required by law to testify. Officers know this too. In fact, prosecutors routinely issue subpoenas mandating the appearance of officers at even routine hearings. This should be a matter of concern for Las Vegas residents as it may indicate that the prosecutors involved hold a low opinion of the intelligence of the public or may care little for what the public thinks. Yet at the moment, at least the potential for limited reform may exist.

Another bit of missing video, or potentially photography, is images of the merchandise allegedly strewn all over Costco by Scott. Several store employees have testified that Scott was so deranged that he was, in a virtual frenzy, ripping open merchandise and actually throwing it in all directions. If this was so, and to the degree suggested by Costco employee testimony, surely the police photographed it? Yet no media account of which I am aware mentions such evidence. It is another interesting coincidence that if the police did not record such potentially meaningful evidence, all internal and external Costco store video for that time is also apparently lost.

So it would appear that the prosecutors and the police are indeed on the same page in this case. Whatever animosity they might bear toward each other is being put aside and a common front presented. What is the significance of the apparent approach of the police and prosecutors to date? Even if one accepts their theory that Scott was a drug addict and an aggressive gun nut intent on carrying a gun wherever he wanted, who, through gross drug-induced impairment, brought about his own death, all of this should rightfully be nothing more than mitigating evidence that might have some bearing on the severity of a charge to be brought against the officers, or to be considered only after a potential future conviction as mitigating factors relating to sentencing.

What still remains is what the officers knew or reasonably could have known or inferred at the time they confronted Scott at the main entrance of Costco and made the decision to pull the trigger. It is this event, compressed in time, that should be the prosecutor’s foremost concern. Scott’s life history and his physical and mental health status could have, in at least some way, put him on a collision course with the police that day. But the ultimate question is whether they, knowing nothing about Scott but what they heard on the radio on the way to Costco, and apparently finding themselves surprised when a Costco employee suddenly pointed out a man they had never before seen, were justified under the law by his actions in the handful of seconds before they fired at least seven rounds into him. Under this, the only standard that truly matters, the evidence presented at the Inquest does not yet tend to favor or conclusively exonerate the police.

IN THE NEXT UPDATE, NUMBER 4: The 9-11 call and a partial radio transcript are meshed and analyzed.

Note: The primary sources for this article were the Las Vegas Sun and the Las Vegas Review-Journal.