GREENE: Slain preacher’s family alleges that Denver officers rigged Taser evidence

The family of the homeless street preacher killed in Denver’s jail in 2010 wants the new district attorney to investigate whether the officers responsible switched out the homicide weapon to conceal their excessive use of force.

Marvin Booker died after he tried to retrieve shoes he’d left in a waiting area before being booked. Four deputies piled on top of him, cuffed him, and put him in a chokehold in front of several witnesses. While he lay on the floor, hands cuffed behind his back, deputies holding him down, their sergeant shocked him with a Taser.

Seven years later, questions linger about the Taser evidence, including:

• why the sergeant, Carrie Rodriguez, went to her office to purportedly lock up the Taser before seeking medical help for Booker, a detour the city’s official report omits
• why, as Booker was dying, Rodriguez made another trip back to her office to retrieve the Taser, later testifying she thought she might need it for protection against him
• why she handed in as evidence a Taser that wasn’t deployed the day of the incident
• and why a police detective investigating the case switched that Taser for another that was fired that day but 34 minutes after Rodriguez shocked Booker and for a much shorter time than video and eyewitness evidence suggest

Denver’s Safety Department relied on data from the Taser the detective swapped into evidence to inform the autopsy report, the internal investigation of Rodriguez and the four deputies involved in Booker’s death, the Denver District Attorney’s decision not to press charges against the officers, and its own decision not to discipline or fire them.

During the 2014 civil trial, the city called upon an expert on Tasers to explain the time disparity by saying the Taser’s clock was off. But there was no evidence backing up that claim and the witness was forced to concede that Tasers’ clocks may drift by a minute and a half at most, but not 34 minutes.

The Bookers say the chain of events around the handling of the Taser screams of a cover up. As they tell it, Rodriguez had motive to hide or destroy the original Taser and switch it for a proxy so she could avoid prosecution and keep her job after apparently having shocked Booker longer than city policy allows. And they say Mayor Michael Hancock’s administration had an interest in overlooking potential evidence tampering and perjury to protect the city in the civil suit and to temper public outrage over the killing of a 135-lb. man who, even by the officers’ accounts, presented no physical threat.

The family won a $6 million jury award in its civil suit against the officers and the city, but says the administration still owes them answers about the Taser evidence.

“The people of Denver presumably trust law enforcers not to turn a blind eye to the disappearance of a key weapon used in a street murder. Do they have that same trust in the rigor with which law enforcers investigate their own?” the Bookers asked in a letter earlier this month urging Denver District Attorney Beth McCann to investigate.

McCann told The Colorado Independent that she will look into the family’s request, but that her “inclination would be not to reopen” a cased closed by her predecessor, Mitch Morrissey, whom she replaced in January.

Mayor Hancock and Denver Safety Manager Stephanie O’Malley haven’t responded to questions about whether, after five years of red flags surrounding the Taser evidence, they’ve investigated questions about the authenticity of the weapon used in one of Denver’s most notorious excessive force deaths. Two weeks after being asked, the administration’s only responses have been to say that, given the potential for a new criminal investigation, it will refrain from commenting.

***

Marvin Booker, 56, was a minister’s son who grew up in ‘60s-era Memphis memorizing the speeches of Martin Luther King, Jr., to whom his family had ties. He’d recite them in a tone and cadence uncannily similar to the civil rights leader, whenever and wherever anyone would listen. Rather than ministering to a congregation as did his father and brothers, he preached to the homeless, drug addicted, and otherwise disenfranchised. The streets of Denver became his parish, he’d say, and the people on them hungered for faith.

Like many of those to whom he ministered, Booker had some drug problems, mental health challenges, and run-ins with the law.

In the early hours of July 9, 2010, he was hauled into Denver’s Van Cise-Simonet Detention Center on an outstanding warrant for drug possession. He had taken off his shoes in the seating area while waiting for his name to be called. When it was, at about 3:30 a.m., he walked sock-footed to the booking desk, then turned back to retrieve the shoes he’d left behind. A sheriff’s deputy grabbed him for ignoring her order that he return to the booking desk. Booker resisted, swinging his elbow toward her twice after she restrained his arm. Three other officers wrestled him to the ground, piled onto him, cuffed his hands behind his back, and put what’s called a sleeper hold on his neck. He died after Sgt. Rodriguez, the on-duty supervisor that morning, shocked him with a Taser.

The attack was captured on surveillance cameras.

The autopsy report attributed Booker’s death to the pressure deputies put on his back, their carotid hold on his neck, and the electric shock Rodriguez applied on his thigh.

Four of the five officers involved, including Rodriguez, still work in the Sheriff’s Department. None has been reprimanded for excessive force, and none criminally prosecuted.

Booker’s family sued the city for wrongful death and civil rights violations. The case wound its way up to the 10th Circuit U.S. Court of Appeals, which in March 2014 handed down a scathing decision debunking the city’s version of events before sending the case back to U.S. District court for trial later that year. Appellate judges ruled, despite the city’s claims to the contrary, that “Mr. Booker did not resist during the vast majority of the encounter,” “that a reasonable jury could find excessive zeal behind the use of force on Mr. Booker,” and that, even when he had no pulse and his body went limp, deputies were negligent in ignoring signs that he was dying.

A footnote in the 10th Circuit ruling pointed to the discrepancy between the eight seconds recorded in the Taser data and the 25 or more seconds that video evidence shows the sergeant holding the stun gun to Booker’s leg.

Mari Newman, an attorney for the Bookers, said the city never accounted for the holes in the Taser evidence.

“They were changing their stories fast and furious during trial, so it was impossible to ever get to the bottom of it,” she told The Independent. “All we could tell for sure is that the story about the Taser was shifting before our eyes.”

The federal jury found Rodriguez, the four deputies and city government culpable for Booker’s homicide, liable for excessive force, and to blame for, among other things, having overexaggerated the threat Booker posed and destroyed evidence, including officers’ text messages to each other right after he died. The family’s $6 million jury award was the highest in Denver’s long history of excessive force cases.

The Bookers say the money hasn’t ended their sleeplessness, nor given them closure about a homicide in which they say the perpetrators haven’t been brought to justice. They want to know how long their son and brother was shocked so they may understand what he experienced while dying.

The only way to do that would be to download data from the Taser.

***

Court records and documents obtained through a freedom of information request detail a string of irregularities in the way city officials handled Taser evidence in the Booker case.

Hours after his death on July 9, Rodriguez turned over a Taser model X26 with the serial number XOO-379232 as evidence for the police investigation. But it wasn’t until July 22, nearly two weeks later, that M.E. Vigil, the police detective leading the investigation, sought to check data from that Taser to see how long it had been deployed. After some technical problems downloading it, he was able to do so the next day, only to learn that the Taser hadn’t been used on July 9.

Vigil went to find the other Tasers kept in a lock box in the sergeant’s office. Data downloaded from one of them, with the serial number XOO-379203, showed it had been deployed on July 9. The city relied on it as evidence moving forward. But the data downloaded from that Taser doesn’t jibe with other facts in the case. It shows the Taser was activated at 4:10 a.m., more than a half hour after Rodriguez shocked Booker at 3:36 a.m.

At trial, the city tried explaining the time discrepancy through the testimony of Jeffrey Ho, a medical doctor and sheriff’s deputy whom the manufacturer, Taser International, pays to testify as an expert witness. Ho said that if law enforcement agencies sync Tasers to computers set to the wrong time or if they allow Tasers’ batteries to run down, the time reflected in their data may begin to deviate from real time in an effect known as “clock drift.”

But the city presented no evidence that the computer to which the Taser was synchronized was set to the wrong time. And, on cross examination, Ho acknowledged he had no evidence on which to base his conjecture that the Taser had experienced clock drift. Clock drift amounts to only about a minute-long deviation from real time, he admitted. It can’t explain the 34-minute gap between the time Rodriguez shocked Booker and the time the Taser used as evidence was deployed.

The length of the shock was also in dispute. Data from the Taser evidence shows it was fired for eight seconds. The officers involved in the attack testified that was about how long Rodriguez shocked Booker. But witnesses for the Booker family testified it was much longer. Video evidence suggests Rodriguez held the Taser to Booker’s leg for 25 to 27 seconds, although it’s impossible to tell from that footage if it was activated that whole time.

Gov. John Hickenlooper was mayor at the time of Booker’s killing in July 2010. He resigned to become governor in January 2011, when interim mayor Bill Vidal replaced him for six months before Hancock took office in July 2011. It was under Vidal’s watch that the city in May 2011 released its official report on Booker’s killing. That report left out key details that starting coming to light in 2012 during proceedings in the civil case.

One such detail concerns Rodriguez’s handling of the Taser minutes after she shocked Booker when her colleagues carried his unresponsive body from the floor of the waiting area to a nearby holding cell. The city’s report reads: “About one minute after shutting the cell door, Sergeant Rodriguez can be seen on video going toward the nurse’s office” to get medical help.

As the family points out in their June 8 letter to the DA, the statement “glosses over what happened during that one minute.”

Video evidence presented during the civil case shows Rodriguez with the original Taser in hand heading in the opposite direction of the nurse’s station toward her own office where several Tasers were stored in the lock box. Rodriguez acknowledged in testimony that she went to her office first to lock up the original Taser before getting medical help for the man she had just shocked. She also testified that on her way from the nurse’s office back to the cell where Booker’s lifeless body lay, she made a second detour to her office to retrieve the Taser in case Booker somehow revived and threatened violence.

“Wasn’t there a mix-up on what happened with the particular Taser you used after you went and turned it back in?” an attorney representing the Booker family asked her during a January 2012 deposition.

“I think there was some. The – I know I – there’s – the container that holds the Tasers has more than one in there. So when – I think Mr. Vigil informed me later that the Taser that I believed I had during the incident was not the one that was actually the one that I used,” Rodriguez said.

Later in her deposition, Rodriguez said she turned in a Taser to a captain at the jail in the hours after Booker’s killing.

“And it turns out that was the wrong one?” the lawyer asked.

“Yes.”

“How did you in fact give him a Taser different than the one you used?”

“The only – the only thing I could figure out is when I put the Taser away the first time, and when I went to go get it the second time, I grabbed a different one when I grabbed the – for the second time.”

“Well, is there just like a great, big box with Tasers in it, or is there a particular slot you’re supposed to put them in, or what?”

“It’s not a huge box, but it’s a box that has more than one in it, yes.”

“Do you just reach into the box and grab a Taser?”

“Yes.”

The city has not made Rodriguez available for an interview and The Independent’s attempts to reach her have gone unanswered.

Right after paramedics removed Booker’s body from the jail, testimony shows that Rodriguez and the four deputies gathered in her office to talk, at her suggestion. From there, three of the deputies went to see video of their attack on Booker, but were denied access to the footage by their colleagues.

Asked in a deposition why he sought to see the video just minutes after the incident, Deputy James Grimes answered, “for no particular reason.”

Immediately after they tried seeing the video, the deputies joined Rodriguez and the other deputy to talk again, this time outside the jail near the employee entrance. That gathering, too, came at Rodriguez’s suggestion. At least three of the officers testified that they were comforting each other and trying to decompress.

Based on the chronology of events described in civil proceedings, the Booker family believes that the five officers gathered outside the employee entrance – and out of earshot of their colleagues – at 4:10 a.m., the same time the substitute Taser used as evidence was deployed.

The city, in response to The Independent’s freedom of information request for video of the exterior of the employees’ entrance, said last week that footage was not “considered relevant to the investigation, so none was retained.” Mary Dulacki, the Safety Department’s record administrator also wrote that “There were no cameras capturing the Sgt.’s office.”

Sheriff’s Department policy requires officers to file a report whenever they deploy a Taser. But no such report was filed in the Booker case. Rodriguez said she was instructed not to do so.

“Do you know why you never complied with the policy that you have to file a Taser usage report,” an attorney for the Bookers asked her in a deposition.

“I was never told to.”

“Well, you’re told to by the policy that says when you deploy a Taser, you have to file a report?”

“Correct.”

“At some point somebody said, We’ll do it later on, so don’t do it now?”

“Correct”

“Who was that?”

“I believe it was – I don’t remember who told me.”

“Must have been somebody in the command staff above you, or else you wouldn’t have taken it seriously, right?”

“My command staff or my attorneys. Somebody told me not to.”

***

At the civil trial, U.S. District Judge R. Brooke Jackson directed the city’s lawyer, Tom Rice, to bring to the courtroom data from the Taser that was fired on Booker at 3:36 a.m. Rice did not comply, and the issue wasn’t resolved. When Wade Gardner, in his documentary, “Marvin Booker was Murdered,” asked Rice about that part of the trial, Rice admitted it “was not our finest moment.”

“The missing Taser was the smoking gun in this case,” says Gail Booker, Marvin’s sister-in-law. “They should have been investigating this long ago without us still asking them to investigate seven years later.”

The Bookers say that once Rodriguez admitting during civil proceedings that she had turned in the wrong Taser, they expected charges would be pressed against her. The family is incredulous that four years after hearing that admission, Hancock’s administration has not definitely and publicly ruled out the possibility that the Taser upon which the city built its defense of the officers’ actions may, in fact, be the wrong Taser.

“When will they stop with their lies, their cover ups? When will they own up to the fact that the Taser that matters, the one used on Marvin, is nowhere to be found, and that these others…are just made up evidence? When will someone be held accountable for this mess,” Gail Booker said, adding that “no company pays out $6 million on an employee and nothing happens” in terms of discipline.

The family wants “everyone who knows anything about the whereabouts of that Taser” investigated by the DA’s office.

“And we mean everyone,” Gail Booker said.

Denver has a strong mayor form of government, allowing the executive branch, not the city council, to decide which legal battles to fight. Under Hancock’s watch, the city has spent an untold amount of tax dollars – beyond the $6 million jury award to the family and safety officials’ and city attorneys’ time working on the case – defending Booker’s killing with private lawyers and their support teams, expert witnesses and all related travel expenses.

Hancock also has spent personal capital on the case. Several members of Denver’s Black ministerial and civil rights communities and others who’ve closely followed the city’s disciplinary decisions and defense in the civil case have ended longtime friendships with the mayor over the lengths his administration has gone to justify the homicide.

Still, Hancock has cited the Booker case as a reason to implement what he has called sweeping reforms in the Sheriff’s Department. He and his appointees have at several news conferences and public appearances touted those reforms as successes. But data showing ever-increasing assaults in Denver’s jails, as well as deputies’ 2015 killing of Denver jail inmate Michael Marshall, a mentally ill homeless man, in ways similar to Booker’s homicide cast those successes in doubt. As the jails grows overcrowded and deputies work record levels of overtime, the risk of more killings like Booker’s and Marshall’s grows.

Hancock and Public Safety Manager O’Malley haven’t responded to inquiries about the handing of the Taser evidence, how they reconcile discrepancies between the Taser data and facts of the case, and whether they investigated once those discrepancies came to light. They also didn’t answer questions about the Bookers’ allegations of a cover up.

“The Department cannot comment on these details while the District Attorney’s office is considering the family’s request for a second review into the incident,” O’Malley’s strategic advisor, Daelene Mix, wrote in an email last week. She noted that her office “will reach out to the Booker family regarding their concerns” and to the news media “at the appropriate time.”

McCann swore in as Denver’s chief prosecutor in January of this year after running as a change agent. The DA’s office was led for 12 years by Morrissey, who never prosecuted a uniformed officer in connection to an on-duty use-of-force case. McCann said she will look into the Bookers’ allegations and “will be interested in what I find out.” Yet, she said her “inclination would be not to reopen” a cased closed by her predecessor.

“Typically we don’t go back and reopen cases where a decision is already made,” McCann said. “I think there has generally been closure.”

The Rev. Spencer Booker, Gail Booker’s husband, said closure would have entailed holding the officers accountable for his brother’s death. Instead, he watched all five walk out of the courthouse after the $6 million court judgement against them to resume their normal lives.

“They put their backpacks on and walked down the street. One got in the car with his family. They got on the bus,” he said. He said he remembers wondering “How is it that they go back to work…?” That question, he said, has nagged and him and his family every day since.

There will be no closure, Booker’s mother, Roxey Booker-Walton said, until McCann considers new evidence about the Taser that came to light during civil proceedings – evidence to which Morrissey likely wasn’t privy when deciding not to press charges against any of the officers. She will not sleep soundly, she added, until the city explains its handling of the weapon used in the killing of her son.

“Something happened criminally for that Taser not to be reported or confiscated as evidence,” Spencer Booker said. “From the Police Department to the Sheriff’s Department to the Safety Manager to the Independent Monitor to the DA, that they would all lean on each other’s story without properly investigating each step of the way… that doesn’t sit right. It’s not right.”

Each of the Bookers say they wonder every day about a Taser they’re convinced officers removed from the jail and destroyed. This is what they talk about at every family get-together, every year on Marvin’s birthday, and every anniversary of his death.

“There’s not going to ever be a gathering when we don’t discuss it,” Gail Booker said.

Spencer Booker plays over and over in his mind his conversation with Phillip Wicks, who witnessed the attack in the jail and described the surprising length of the Taser’s electroshock and the sound it made.

“ClackClackClackClackClack,” Spencer Booker recalled. “The way he explained it hurt my body.”

ClackClackClackClackClack, he repeated, and then repeated again. ClackClackClackClackClack. The sound rattles in his head. It came to him most recently when changing a fuse.

“It jolted me,” the Reverend said. “It jolts me, thinking of them doing that and what my brother must have felt his last breath of his life.”

Photo of Marvin Booker courtesy of his family.