Politics and Policing in the Aftermath of George Floyd

MIKE RAINS
Principal
Rains Lucia Stern St. Phalle & Silver, PC

The Manslaughter “Case” Involving San Leandro Police Officer Jason Fletcher

In my days as a college student in the late 1960s, I read a 1946 essay by British author George Orwell, entitled “Politics and the English Language,” in which Orwell insisted that “in our day, there is no such thing as ‘getting out of politics’ — every issue is a political issue.” He went on to describe politics as a “mass of lies, evasion, euphemisms, folly, hatred, schizophrenia and paranoia.”

Now, in my days (and later years) as a police lawyer, I continue to deal with the politics of policing and the manslaughter charges filed against San Leandro Police Officer Jason Fletcher for his fatal shooting of an individual named Steven Taylor, who was wielding a baseball bat in a Walmart store in San Leandro, preparing to “bash Fletcher’s head in.” That fatal shooting occurred on the afternoon of April 18, 2020, just 37 days before the death of George Floyd in Minneapolis. Today, in the aftermath of Floyd’s death, there is no such thing as a police officer involved in a fatal shooting avoiding the impact that politics has on the investigation and adjudication of the event.

The truth is that I have not been involved in a police criminal case — since spending about six years in the two criminal trials of the Oakland “Riders,” starting in 2000 — more infused and infected by politics than the manslaughter prosecution of Jason Fletcher for the fatal shooting of Steven Taylor.

The purpose of this article is to provide the readers with a short chronology of the events that have occurred in the past half-decade. It outlines how we arrived at our current effort to obtain a result for Officer Fletcher that is devoid of politics and based entirely on the facts of the case and existing legal authority.

The Underlying Event on the Afternoon of April 18, 2020

Patrol Officer Fletcher responded to a broadcast of an adult African American male at the local Walmart who was in possession of stolen merchandise, was acting aggressive and hostile, and had threatened a security officer with a bat.

Fletcher would later learn that after the suspect, Steven Taylor, was advised that the police had been called and were coming, Taylor responded, “I don’t give a fuck. I don’t give a fuck about my life. They’re going to have to kill me.”

As Fletcher walked to the front door of the Walmart and talked briefly with one of the security officers who had called, he saw a backup unit pulling into the parking lot. Although Fletcher originally assumed the suspect was not going to be waiting for him near the door, he was surprised to find that the suspect was standing only about 15 feet from the store entrance, still holding the baseball bat, and looking at Fletcher.

Fletcher slowly approached Taylor, talking to him calmly and asking him to drop the bat. He got close enough to reach out with his left hand to take hold of the bat, but Taylor suddenly jerked it backward and away from Fletcher, then backed up with a look of “pain and hate” in his eyes. Fletcher issued additional verbal commands for Taylor to drop the bat, but he refused to do so. Fletcher drew and fired his taser at Taylor from an estimated distance of about four feet. He stood and watched as Taylor “fought through” the effects of the initial cycling of the taser, but it was not debilitating and Taylor started to approach Fletcher, bringing the bat upward. At that point, Fletcher sent another five-second electrical charge to the probes, causing Tayor to lower the bat once again, but not drop it. Taylor then again began to walk toward Fletcher, who started backing up. Taylor came within about six feet of Fletcher, who was again raising the bat, which he held with both hands, when Fletcher fired the single round from his firearm. This single shot proved fatal.

Members of the Walmart security team and other citizen “bystanders” were interviewed in the aftermath of the shooting. Nearly all reported to the police that Fletcher was going to be struck with the bat if he did not fire his firearm.

The Investigation of the Case

Within a few hours after the shooting had occurred, Fletcher provided a voluntary interview to representatives from the Alameda County District Attorney’s Office and to Lieutenant Brian Anthony, the lead investigator from the San Leandro Police Department. The lead investigator from the Alameda County District Attorney’s Office was a highly regarded senior deputy district attorney who had been on the OIS Investigation Team for several years when the shooting occurred, and whose knowledge of the law and analytical ability were held in high regard by everyone who worked with and around him. San Leandro’s highly experienced lead investigator, Brian Anthony, completed a 66-page summary report including interviews of Fletcher and independent witnesses, and a detailed analysis of video evidence from Fletcher’s body-worn camera and store security cameras.

Penal Code Section 835a had been recently amended, and Anthony’s report concluded that Fletcher’s use of lethal force was lawful because Taylor, when shot, presented an “imminent threat of death or serious bodily injury” to Fletcher when the shooting occurred.

Anthony’s 66-page report and attachments were sent to the District Attorney’s Office and reviewed by the assigned deputy DA and his inspector, who had also been involved in the investigation and evaluation of the evidence.

The Charging of the Case

As indicated above, although the fatal shooting of Taylor by Fletcher occurred before the death of George Floyd on May 25, 2020, the charging decision did not occur until September 2, 2020. In that interim period, violent demonstrations had occurred in the entire Bay Area, condemning police officers’ alleged unlawful and unnecessary use of force, particularly against African Americans.

Needless to say, when Fletcher was finally charged with manslaughter, on September 2, 2020, the process employed by the Alameda County District Attorney’s Office resulting in the criminal filing was a very visible departure from the process it had employed in past cases. In those prior cases, the assigned DA inspector or occasionally the assigned deputy DA would prepare and file a “probable cause declaration,” seeking the issuance of an arrest warrant against the involved officer, and the deputy DA assigned to the case would sign the criminal complaint that charged the officer. In this case, the assigned DA, who had been conversing with Anthony about the shooting, discussing the evidence and Anthony’s report once it was completed, took no role whatsoever in either the preparation of the probable cause declaration or in the signing of the criminal complaint. Instead, the probable cause declaration was prepared by another DA inspector who had no role whatsoever in the investigation of this shooting, and the criminal complaint was signed by another deputy DA who had no role whatsoever in the investigation of the case, nor was he assigned to the OIS team in the DA’s Office at the time. Politics, instead of the facts and law, drove the charging decision.

It was and is clear to me that the assigned DA and his DA inspector had concluded that Fletcher’s use of force was lawful and reasonable, a decision that, in the aftermath of George Floyd, would likely trigger widespread criticism in the county and potential violent responses, as well.

However, I would not realize until much later that on the day following the fatal shooting of Taylor by Fletcher, then–civil rights lawyer and community activist Pam Price had posted on social media that she had seen video of the shooting and described it as an “execution” by Fletcher. In the days and weeks and months following, as Price campaigned to be the elected district attorney in Alameda County, she publicly described the shooting as a “murder” during campaign speeches, and referred to Fletcher as an “executioner.”

The Preliminary Hearing and Concluding Remarks by the Judge

The preliminary hearing of the manslaughter “case” against Fletcher occurred before Price was elected to be the DA in Alameda County. The deputy DA assigned to handle the preliminary hearing presented a straightforward “case,” largely through the testimony of San Leandro Investigator Anthony and of a forensic video specialist employed by the Alameda County District Attorney’s Office. The DA did not present any evidence, neither through expert testimony nor through any other witness, that Fletcher’s use of force was unlawful, and Anthony confirmed the conclusion in his report that Fletcher’s use of force was reasonable and lawful.

Notably, on cross-examination, Anthony was asked about the autopsy report concerning Taylor and, particularly, the toxicology analysis showing that at the time of the incident, Taylor’s blood included evidence of marijuana, THC, amphetamines and methamphetamines. Anthony testified that he had interviewed a criminalist whose resumé was admitted into evidence at the preliminary hearing. The criminalist had explained to Anthony that the high levels of amphetamines and methamphetamines in Taylor’s system would likely make him “irritable, very agitated, produce high pain tolerance, make him impulsive, and that it may result in him not thinking about the consequences of his own action.”

RLS Partner Julia Fox and I represented Fletcher at the preliminary hearing, and continued since its conclusion. At the conclusion of the two-day preliminary hearing, Superior Court Judge C. Don Clay, while stating that the DA had produced sufficient evidence to require Fletcher to stand trial, told the assigned DA prosecutor, “I don’t — under any circumstances, do I see 12 people saying that the evidence here is going to be sufficient to support a guilty verdict. I just don’t see it. Twelve people are not going to agree to that. Not in this community.” After making that statement “on the record,” the judge encouraged the assigned prosecutor to convey his thoughts to then-DA Nancy O’Malley, who had charged Fletcher to begin with, but the politics of the case in the aftermath of George Floyd virtually ensured that she would not admit that a mistake had been made.

Pam Price Is Elected to Be the Alameda DA

On November 8, 2022, DA candidate Price, who campaigned primarily upon “obtaining justice for Steven Taylor” and appeared at campaign rallies with relatives of Taylor wearing “Justice for Steven Taylor” T-shirts, ran against a career DA who had received the endorsement of DA O’Malley, who had made the decision to retire.

Price won the election. Upon taking office in January 2023, her first public appearance was before the Anti-Police Terror Project, criticizing the police and, particularly, police unions, for years of misconduct including excessive force directed at people of color and advising her audience that “the unions are going to be coming after me.”

Price immediately began hiring former public defenders to join her “prosecution team” in Alameda County and put a slew of then-career deputy DAs on administrative leave for alleged various forms of misconduct (including the deputy DA who had originally been the lead investigator to evaluate the fatal shooting of Taylor by Fletcher). Price continued to receive public support and financial contributions from a host of anti-police lawyers, including the lawyers who were representing the family of Taylor and suing Fletcher and the City of San Leandro.

Price quickly formed a “Public Integrity Unit,” consisting of handpicked individuals, to charge and prosecute police officers, and promptly announced that she was reopening approximately seven prior OIS cases of Alameda County police officers that had been determined by the prior DA to be justified uses of force.

Price also assigned an individual she had hired as a DA — who had only recently become a lawyer — to be in charge of the Public Integrity Unit. That individual asked one of the longtime DAs in the office who he should assign to prosecute Fletcher, and was told that no one in the office who knew about the case would want to do it for ethical reasons, because of the unlikelihood of a conviction at trial, as described by Judge Clay. During the same conversation, in response, the newly appointed Public Integrity Unit supervisor advised the deputy DA that Fletcher should have been charged with “murder” and that Price had hired him “to charge cops.” Ultimately, Price and her team assigned one of her newly hired “prosecutors,” a former public defender from Contra Costa County, to be the lead prosecutor of Fletcher.

Price and the DA’s Office Are Disqualified From Prosecuting Fletcher’s Manslaughter Case

It took two separate motions, filed months apart, to finally result in a decision by a Superior Court judge to disqualify DA Price and her entire office from prosecuting Fletcher’s case. The first motion was based primarily upon Price’s almost decade-long history of social media posts denouncing police officers generally for a variety of alleged human rights abuses, and included her accusations of Fletcher as a “murderer” and “executioner.” It also included evidence that she was receiving both public support and economic support from lawyers who were currently suing Fletcher and the City of San Leandro civilly for the death of Taylor.

Representatives of the State Attorney General’s Office made it clear to the Superior Court judge who heard the first motion that they did not want to be assigned the prosecution of Fletcher and argued against disqualification of Price. The first motion to disqualify Price and her office was denied by the court.

Soon thereafter, Price filed a motion to disqualify me from representing Fletcher. In the presence of the assigned prosecutor, her appointed chief deputy DA and an entourage of “Justice for Steven Taylor”–clad supporters, she served me with the motion when I appeared for a status hearing on this case. That resulted in a second motion to disqualify Price. Her “public spectacle” proved to be the undoing of her office, and the judge granted the motion. As a result, the case would have to be prosecuted by the State Attorney General’s Office.

However, soon after the Superior Court judge’s decision to recuse Price and her office, she filed an appeal of that ruling to the Court of Appeal.

Price Is Recalled

Having very little to do with Price’s criminal prosecution of Fletcher, but more to do with her lenient treatment of criminals and indifference to many crime victims in the county, a campaign to recall Pam Price as DA was successful and resulted in a decision by the voters that she be recalled on November 5, 2024. Following the recall of Price, the Attorney General’s Office sent a letter to the Court of Appeal, advising the court of that development and asking it to “remand” the decision to recuse the Alameda County DA’s Office back to the Superior Court judge, pending the appointment of a new interim district attorney.

The Appointment of Ursula Jones Dickson as the Interim Alameda County District Attorney

The Alameda County Board of Supervisors considered applications by a number of individuals to occupy the position of interim Alameda County district attorney following the recall of Price. After reviewing the applications and conducting extensive interviews with the various candidates, the Board of Supervisors selected former Superior Court Judge Ursula Jones Dickson to serve in that role. In light of that development, the case was returned by the Court of Appeal to the Superior Court judge who had originally recused Price and the DA’s Office, to decide whether Fletcher’s prosecution should be resumed by the Alameda County DA’s Office or remain with the State Attorney General’s Office.

Where the Politics of This Case Have Brought Us Today

Although I had the opportunity to request the Superior Court judge to recuse the Alameda County DA’s Office, under Interim DA Ursula Jones Dickson, from prosecuting Fletcher, I had no legal or factual basis to claim that Jones Dickson and others she might appoint to prosecute the case would be biased against him, in violation of the law. Accordingly, it now appears that the case will remain with the Alameda County District Attorney’s Office under the leadership of DA Jones Dickson and the new group of ethical lawyers and inspectors she has assembled to serve in her Public Integrity Unit.

The Most Recent Politically Driven Development: The Revelation Concerning Suppression of Exculpatory Evidence by the Previous Prosecutors in the Pam Price Regime

Not too long after I had advised the AG’s Office and the DA’s Office that we would not oppose the prosecution of Fletcher now being conducted by the Alameda County DA’s office under DA Jones Dickson, the newly assigned head of the Public Integrity Unit telephoned and advised me that he had discovered that the former lead prosecutor in the Fletcher case under the Price regime had sought and obtained the opinions of a number of expert witnesses concerning Fletcher’s use of force. The experts had rendered opinions favorable to Fletcher (indicating that his use of force was lawful and reasonable). It was determined that the prosecutor had improperly withheld this exculpatory evidence from the defense, after he had been told by the previous prosecutor that he had an obligation to disclose such information. This suppression of evidence is not only an ethical violation of a prosecutor’s duty, but can constitute a felony violation of the law. The full extent of the suppression of exculpatory evidence to Fletcher was not readily available to the newly assigned head of the Public Integrity Unit, and he and his unit members are still trying to ascertain the full extent of evidence and expert witness statements that may have been withheld by DA Price and her assigned prosecutor.

As a result of this revelation, I have filed a motion to dismiss the case against Fletcher due to prosecutorial misconduct, which will be heard in late October or early November. Irrespective of the final ruling on that motion by the Superior Court judge, given the “evidence” of the circumstances surrounding Fletcher’s use of force in the first place, the initial analysis of his use of force by the assigned investigator, the determination by Superior Court Judge C. Don Clay that the prosecution could not secure a conviction of Fletcher by a jury in Alameda County based on the evidence in the possession of the DA at the time, and the newly uncovered revelation of additional expert witnesses saying that Fletcher’s use of force was reasonable and lawful, there appears to be more than merely a glimmer of light at the end of this political tunnel.

I hope the final article I write on the saga of Jason Fletcher will be to advise that he finally survived the politics of policing in the aftermath of George Floyd, and more significantly, the politics of policing in the aftermath of Pam Price.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern St. Phalle & Silver, PC. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers practice groups. Mike is one of California’s top trial attorneys. He has over 40 years of experience representing peace officers and other high-profile clients in civil and criminal litigation.