Yes, Virginia, There Is A Santa Clause. Honesty From The D.A.’s Office? That, Virginia, Is A Fairy Tale!

When I was ten, I read fairy tales in secret….

When I became a man I put away childish things.

–C.S. Lewis “On Three Ways of Writing for Children” (1952)

While I don’t remember when I stopped believing in Santa Clause or the Easter Bunny, I do know exactly when I stopped believing in Clark County District Attorney Steve Wolfson and the fairy tale I, like many in the valley, had created. Whether it was naivety or simply my own ridiculous hopefulness, I had convinced myself Wolfson was the perfect man to captain the “plague ship” that was the Clark County District Attorney’s Office after being abandoned by David Roger at the end of 2011.

Clark County District Attorney Steve Wolfson

But Wolfson’s recent decision not to pursue charges against Gang Enforcement Detective Casey Clarkson for his role in the killing of Bernard Pate was the final straw. Wolfson’s announcement that Clarkson would not be charged for shooting Pate in the back as he ran from officers the night of November 21, 2012 left me unable to ignore the fact that Wolfson, like his pint-sized predecessor, David Roger,  was more interested in pushing the local police narrative than he was in finding the truth or dispensing justice.

Beginning with his decision to ignore the criminal actions of Henderson Police Officer Brett Seekatz for the vicious, 2010 videotaped beating of Adam Greene. While Wolfson’s excuse that his hands were tied by Nevada’s Statute of Limitations was on very shaking legal ground, it was at least understandable, due to the difficulty his office would have had in securing a conviction. But then came his blind acceptance of the hugely contested Excited Delirium Syndrome (ExDS),  as a cause of Eduardo Lopez-Hernandez’s death after being repeatedly tased by a Nevada Highway Patrol Officer during rush hour traffic on 1-15.

ExDS is a controversial cause of death that only seems to occur in subjects who have just been beaten or tased by police and is not recognized by a single professional medical association, nor is it listed in the chief psychiatric reference book, Diagnostic and Statistical Manual of Mental Disorders Vol. IV (DSM IV). Despite this Wolfson’s office released a memo justifying its decision that was both light on facts, and played fast and loose with the law.

To be fair, Wolfson admits his memo explaining his office’s decision not to pursue criminal charges against Clarkson “is not intended to recount every detail, answer every question or resolve every factual conflict regarding this police encounter.” But rather one should look at the letter “solely for the purpose of explaining why, based upon the facts known at this time, the conduct of the officer was not criminal,” and how that decision is “premised upon criminal-law standards.”

Bernard Pate Was Shot In The Back And Killed By Metro Officer

What the Pate document actually shows is that Wolfson, despite clear promises to the contrary, has deferred to the long-standing tradition of never finding Metro officers culpable for killing our neighbors. Wolfson’s memo clearly ignores both the facts as they are currently known and the law as currently written in clearing Clarkson. While we intend to examine how Wolfson’s office, more specifically Chief Deputy District Attorney, Pamela Weckerly’s application of the law does not take either Federal or Nevada law into consideration, it also fails to consider the ACTUAL FACTS as we now know them, this post will focus primarily on how the DA’s memo not only purposefully misstated Nevada law, but completely ignored significant portions of the Nevada Revised Statutes in order to reach its conclusion.

In the coming days, we intend on discussing how the “facts” the DA’s office relied on when making its flawed decision are not actually facts at all.

The Incident

The official narrative from the DA’s memo, upon which the resulting legal decisions were applied goes as such:

    “On November 21, 2011, Gang Enforcement Detectives Casey Clarkson and Christopher Tucker, from the Gang Crimes Bureau, were conducting enforcement operations in the 4400 block of East Karen Avenue. They were working as a two man, unmarked, gang unit, call sign GC-61. At approximately 2300 hours, as they patrolled the Karen Pines apartment complex at 4450 East Karen Avenue, they observed a black male adult dressed predominately in red clothing, loitering in the playground area in the center of the complex.

Detective Clarkson exited the patrol vehicle and attempted to conduct a person stop on the male on the east side of the apartment complex. The male (later identified as Bemard Pate and hereinafter “Decedent”) ran from Detective Clarkson toward Karen Avenue and a foot pursuit ensued.

The Decedent tumed eastbound on Karen Avenue and produced a black semi-automatic handgun, which he pointed back towards Detective Clarkson.

Detective Clarkson drew his duty weapon and fired multiple shots at the Decedent, which caused him to stumble and fall to the ground. Additional Gang Detectives arrived and assisted with taking the Decedent into custody. The detectives requested medical personnel respond to the scene. Medical personnel arrived and pronounced the Decedent deceased at the scene.”

It should be noted that, other than the shot to Pate’s back and the nine shell casings recovered from the scene linked to Clarkson’s weapon, there is absolutely no witness testimony or physical evidence to support this version of events. As I said earlier, for now we are only going to look at only the legal side of the DA’s decision.

Investigators at The Location Pate’s Body Was Found After Being Fatally Shot By Metro Det.

It is important to note that this narrative was not pieced together by any official, legally viable statements made by any of the officers on the scene that night. It is the result of a statement given to Homicide Detective Dolphis Boulcher by one Sgt. Clark, who witnessed none of the events surrounding Pate’s death, but allegedly took Det. Clarkson’s mandatory “Public Safety Statement” the night of the shooting. This “Public Safety Statement” from Detective Clarkson is basically an unofficial statement that is neither sworn, nor can its contents be used in any criminal proceedings for or against the officer who supplies it. Note that Det. Boulcher did not take the statement himself, but rather reports what Sgt. Clark told him how he recalls Det. Clarkson relayed to him how the events unfolded. This triple hearsay would be laughed out of any court in the U.S., so for all intents and purposes Det. Clarkson has not told investigators why he fired on Pate, or what was going on in his mind at the time.

Two anonymous eyewitnesses who lived at the Desert View Apartment Complex overlooking the location of the shooting are said to have heard the gunfire, although neither saw Pate with a gun, one told investigators she  “believed the dead person probably shot first, because the officer would not have fired for ‘no reason.’” We know for a certainty Pate never fired on officers, so half of her statement we know for a fact is false. The other witness, who lived in the same apartment told investigators he thought her heard a police officer yell “[i]s that good for you?” and “[g]et down!” followed by 8 gunshots he believed were fired by two people, because the shots came from different directions.

Two Witness Living at The Desert View Apartments Didn’t See Pate In Possession of a Weapon.

Pate’s wife, who had spoken to her husband around the time of the shooting was interviewed that night and stated that “she had never seen [her husband] with a gun,” yet police claim to have later recovered a  box of .380 Auto ammunition they found “In plain view on the [Pates'] kitchen counter.” Detectives also state they spoke with an Arizona woman who reported a similar weapon to the one recovered at the scene stolen on October 1, 2011 from her sister’s Las Vegas apartment. The unidentified gun owner claims the weapon was “in a locked box, along with a trigger lock, and a box of ammunition, on top of her sister’s refrigerator” when the two left for unknown length of time, returning to find someone, rather than simply steal the box itself  to ope privately later, had broken the lock box, taking only the handgun and ammunition.

Despite the gun owners adamant statement that she “did not give the handgun to anyone, or give anyone permission to take it, nor did she believe anyone knew the gun was in the apartment” she told investigators that she believes her sister’s boyfriend’s friend, known only as ‘Brooklyn,’ took the weapon. He reasoning behind this accusation is that ‘Brooklyn‘ was not present at the time of the theft although the sister’s brother said ‘Brooklyn‘ had offered to help her move.

This brings us finally to the District Attorney’s legal justifications for not pursuing charges in this manner. The Pate Memo was prepared by Chief Deputy District Attorney Pamela Weckerly who, in order to even begin the task of clearing Det. Clarkson, had to  first conveniently forget that under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),  the officers had no legal justification to detain Pate that night in the first place. That without a reasonable suspicion based on “specific and articulable facts” that Pate was in the process of, or about to, commit a crime, he was free not to engage the officers and to go on about his business at any speed he saw fit.

The assertion put forth in the Metro narrative that Clarkson chased Pate because he was guilty of “Obstructing a Police Officer by fleeing from the detective’s presence,” ignores a fundamental freedom assured us in the Fourth Amendment. That, with no legal reason to detain Pate, he was under no legal obligation to speak with, acknowledge or even remain in the officer’s presence. Pate’s flight, while suspicious, was in no way a criminal act that warranted immediate pursuit. With another gang unit in the immediate area, officers could have monitored his actions without violating his Fourth Amendment guarantees.

Weckelry ignores Terry V. Ohio because, as you will see later, its application here is fundamental in determining the incidents primary aggressor as demanded by NRS 200.120.

After ignoring the officer’s complete disregard for Terry, Weckerly instead focuses solely on Nevada law in order to clear Clarkson. She cites NRS 200.120, NRS 200.130, NRS 200.140, NRS 200.160 and NRS 200.190 as the relevant statutes, yet conveniently refused to acknowledge the equally important NRS 200.170 and NRS 200.200. Weckerly concludes:

“The shooting of Decedent was justifiable under the following theory: The killing of a human being in self defense/defense of others.

She states the authority to kill another in defense of others is contained in NRS 200.120, which states that:

“Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.”

This is basically true, but in her quotation of the statue, Weckerly leaves out half of its content, completely ignoring its language establishing Nevada’s Stand Your Ground Law. While one wouldn’t think this to be relevant, it is decidedly so. NRS 200.120 continues:

 A person is not required to retreat before using deadly force as provided in subsection 1 if the person:

(a) Is not the original aggressor;

(b) Has a right to be present at the location where deadly force is used; and

(c) Is not actively engaged in conduct in furtherance of criminal activity at the time deadly force is used.

Now if we take the Metro narrative as fact, we know that Pate was not committing any crimes when he was approached by two “unmarked” members of Metro’s Gang Unit. This is where Terry v Ohio comes into play. Nowhere in the narrative do the officers identify themselves, so even if Pate was armed and did point his weapon at the officer, by Metro’s own admission, Clarkson was “the original aggressor” removing himself from the protection of NRS 200.120.

Weckerly also notes that, per NRS 200.160, Homicide is also lawful when committed:

“[i]n the lawful defense of the slayer, or of any other person
in his or her presence or company, when there is reasonable
ground to apprehend a design on the part of the person slain
to commit a felony or to do some great personal injury to the
slayer or to any such person, and there is imminent danger of
such design being accomplished

Now there is a very real argument to be made that a suspect running away from police is showing the exact opposite behavior that a reasonable person would interpret as ” a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer,” but let’s assume, as Weckerly does, that Pate was armed and, while in the act of running full speed, turned and pointed a gun at Clarkson. If this were the case, then the DA is correct in excusing this shooting.

In order to secure a conviction in this case Weckerly cites the jury instructions required under Runion (sic)v. State, 116 Nev. 1041 (2000) which states:

“The killing of [a] person in [defense of another] is justified and not unlawful when the person who does the killing actually and reasonably believes:

1.That there is imminent danger that the assailant will either kill [the other person] or cause [the other person] great bodily injury; and

2. That it is absolutely necessary under the circumstances for him to use in [defense of another] force or means that might cause the death of the other person, for the purpose of avoiding death or great bodily injury to [the person being defended].

So while some may see the pivotal question as:

“Was Pate armed, and if he was, did he point his weapon at Clarkson?

The real question facing Weckerly is actually this:

Did Clarkson have a reasonable fear that Pate was about to cause either himself or another “great bodily injury” and there was absolutely no other way (like, say, ceasing the pursuit) for him to stop Pate from cause said injury?

While Weckerly correctly points out that under Ruynon v. State:

If evidence [that a killing was in defense of another exists], the State must prove beyond a reasonable doubt that the defendant did not act in [defense of another].

What Ruynon does not demand, and what is covered clearly in NRS 200.170 is which party is required to provide the “evidence [that a killing was in defense of another exists],” While the Ruynon Instructions demand the “State must prove beyond a reasonable doubt that the defendant did not act in [defense of another].” It must do so only “If evidence [that a killing was in defense of another exists." Such evidence NRS 200.170 tells us:

"the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified, or excused in committing the homicide.

Weckelry ignores this and instead concludes, without a single piece of evidence in support of her conclusion, that on the night of November 21, 2011, Bernard Pate,

"posed an imminent danger to Detective Clarkson, other officers in the area, and residents of the apartment complex. Decedent, after fleeing from officers, pointed a handgun, with a cartridge in the firing chamber, at Detective Clarkson. Detective Clarkson was confronted by the appearance of imminent danger which created in his mind an honest belief and fear that he or another, was about to be killed or suffer great bodily injury. Accordingly, his actions were justified in acting upon those  appearances, fears and actual beliefs.

Notice how she has determined without every speaking to Det. Clarkson that he had "an honest belief and fear that he or another, was about to be killed or suffer great bodily injury," or that he actually witnessed Pate point  "a handgun, with a cartridge in the firing chamber," at him. Nor does she question how Clarkson could ascertain, in the midst of a frantic foot chase, that Pate had a round in the chamber. Either that is some fancy mind reading skills, or Weckerly, like the credibly questionable witness who heard the shooting, just assumes Pate "probably [acted] first, because the officer would not have fired for ‘no reason’” (which would explain why she is so intent to ignore salient legal points to clear Clarkson).

Notice she also ignores the most salient part of Ruynon v State, that Det. Clarkson had absolutely no other way to stop Pate from causing anyone injury? Because any reasonable person can see that it was Clarkson’s actions that dictated Pate’s behavior, and his decision to stop chasing a man who he should have never begun chasing in the first place would have been the easiest way to assure no lives were taken that night.

Weckerly’s “Vulcan Mind Meld” with Clarkson now complete, she finally asserts that under    NRS 200.190 Nevada law “clearly states that homicides which are justifiable or excusable are not punishable,” and that “A homicide which is determined to be justifiable shall be “fully acquitted and discharged.” Yet she again purposefully leaves out a key element of the statute which in its entirety reads:

 “The homicide appearing to be justifiable or excusable, the person indicted shall, upon trial, be fully acquitted and discharged.

Weckerly leaves out the two key words in the stature, “upon trial.” NRS 200.190 does not state that UPON THE DISCRETION OF THE PROSECUTOR, “be fully acquitted and discharged.” The NRS requires a formal court proceeding to determine if a homicide “appears justifiable,” not the simple belief that if an officer were to speak up, he would tell us what we need to hear. We used to do put all officer involved fatalities under the microscope of a legal proceeding here in Clark County. It was called a coroner’s inquest.

But while we wait for the new inquest guidelines to work their way through the court system, due to officers challenging the public’s audacity to hold them accountable, we can expect nothing more from our current District Attorney than to ignore the most salient parts of Nevada law in order to hoodwink the residents of Clark County that he is applying the law as his oath and job demands.

Even if Wolfson does do what it rumored and submits the killing of Stanley Gibson to a grand jury don’t expect much. We can see how his office will pick and choose what facts and legal requirements they must consider. My prediction is that, even though it is said a decent prosecutor can “indict a ham sandwich,” Wolfson’s office will fail to indict Jesus Arevalo for shooting the unarmed veteran seven times in the back of the head.

Metro Officer Jesus Arevalo appears in court to address charges he threatened his ex-wife's boyfriend.

Metro Officer Jesus Arevalo appears in court to address charges he threatened his ex-wife’s boyfriend.

While this examination makes the assumption that the Metro narrative which  these decisions were based upon is accurate, that is not really the case. In the next few days we will examine the Pate document in close detail in order to show how, as has been the habit of Metro, the story they would like us to believe is not only implausible but physically impossible as well.