Did OC Deputies Destroy Exculpatory Infrared Helicopter Video in Attempted Murder Case?

Southern California police pursuits make live dramas for TV broadcasts starring unpaid criminal suspects racing down neighborhood streets, running red lights, ignoring stop signs and weaving through crowded highway traffic in Indianapolis 500 fashion. Late on a November 2015 evening, Jimmy Hoang Truong became the featured performer of such a show as the chased driver of a gray Mercedes S500, which performed the obligatory basics: near-100-mph speeds on the highway and plenty of U-turns, dragging a parade of sirens and flashing lights. The 28-year-old Truong, who’d declined to stop for an expired-vehicle-registration violation, even executed the goldmine of moves for the yowling whirly-bird narrators: He drove on the wrong side of the road.

After a 90-minute pursuit, multiple emotional cellphone chats with a police negotiator and a two-plus-hour standoff secured by two armored combat trucks, Bear and Peacekeeper, Truong surrendered. Oddly, the cops hadn’t fired a single shot, though three Santa Ana Police Department (SAPD) officers claimed he’d tried to kill each of them with semi-automatic .45-caliber gunfire at various points during the incident. A simple registration failure became 17 felony and enhancement charges.

But Mark A. Hover, Truong’s Simi Valley-based attorney, insists the three attempted murder counts are based on falsified police stories. According to Hover, his client, who was living in his car near Little Saigon and struggling with a methamphetamine problem, told the negotiator to keep officers from closing in. But he also said Truong repeatedly made clear the only person he wanted to hurt was himself.

Over the objections this month of prosecutor Brock Zimmon, Hover tried to use science to unravel the government’s case. He summoned Lester J. Kozlowski, an expert in infrared imaging interpretation, to court for a pretrial hearing. Kozlowski, a onetime Hughes Aircraft and Rockwell International scientist whose work helped pave the way for Hubble Space Telescope achievements, explained that hot objects—the hoods and tires on vehicles, bodies of pedestrians and car passengers, and pavement that had been beneath idling cars and trucks—are easily recognized as bright white in infrared recordings.

The airborne law-enforcement crew inside an Orange County Sheriff’s Department (OCSD) helicopter had used its FLIR thermal-imaging camera system to shoot footage of Truong’s chase, and Hover wanted Kozlowski to testify about his bombshell observations of a segment when an officer barked, “Shot fired again.” The defense attorney asked the expert if he expected to see evidence of the alleged shot on the infrared video.

“No question,” replied Kozlowski, but the expert said there was none—no visible muzzle flash or hot bullet projectile.

Zimmon tried to get him to back off his testimony without success.

“A gunshot would be a very bright object,” Kozlowski said. “I’m just talking about the physics.”

The expert also noted the OCSD footage proved all of the windows in Truong’s Mercedes were closed at the time of the cop’s assertion; you’d naturally assume there’d be signs of shattered glass if a bullet had slammed into a window.

“There’s no broken glass,” Kozlowski advised note-taking Superior Court Judge Thomas M. Goethals.

Hover is seeking sanctions against the government—including dismissal of the indictment—not just because of the mystery missing bullet, but also because he says the cops doctored and destroyed key records.

“Evidence has been deleted and altered in what appears to be a systemically planned manner to preclude the defense, court or jury from seeing any of the exculpatory information in any of the individual video and audio recordings in any way valuable to the defense,” he told Goethals.

Indeed, police officials acknowledge they edited audio of Truong’s calls to 911—ones in which he stated he had suicidal thoughts—without informing the defense of the alterations. An entire channel of related police communications was not preserved, and OCSD turned over infrared footage recorded with sequentially ending file numbers of 000, 001, 002, 003 and 005.

Where is 004?

Joseph Kantar, a member of the helicopter crew, testified he’s baffled by the missing file and blamed a possible unknown temporary equipment malfunction, a suggestion Hover found preposterous.

We’ll likely never see all of the helicopter video shot during the chase. After Hover saw discrepancies—such as not a single police picture exists of his client sticking his left arm out of the driver’s-side window to fire bullets at the cops, as the officers described—and demanded access to potentially missing records, OCSD announced that much of the footage had been permanently lost. The cause? Yet another equipment malfunction. Deputies claimed a computer hard drive crashed inside the helicopter hangar at John Wayne Airport.

Arguing all the missing evidence could have just as easily strengthened the prosecution’s case, Zimmon said it would be wrong to view developments as nefarious. “There is absolutely no basis [to believe this was] some sort of fictitious crash,” he said. “If [the helicopter crew and SAPD officers] did these acts [falsifying reports and destroying evidence], they would be fired. Why would they do it?”

Hover thinks he knows the answer: lousy ethics and warped politics. Hours after Truong’s Sunday arrest, District Attorney Tony Rackauckas, DA media flack Susan Kang Schroeder and SAPD chief Carlos Rojas made him the poster face for their campaign to demonize Proposition 47, which reduced certain nonviolent felonies, particularly ones involving illegal drug use, to misdemeanors and freed such offenders from custody. For example, Schroeder addressed the Truong case in the Orange County Register by saying, “Prop. 47 has been a disaster for public safety.”

Guilty of a series of drug possession-related crimes, Truong had been a beneficiary of Prop. 47. According to Hover, the cops concocted the attempted murder scenarios to fit their political narrative. “From the moment Jimmy Truong was arrested, the prosecution has gone to work to make sure he goes to prison for life,” he said. “Inasmuch as the office of the district attorney and Orange County law-enforcement agencies have publicized the case in their anti-Prop. 47 campaigns, they will and have gone to whatever lengths necessary to prevent him from defending the allegations against him and from having a fair trial.”

Goethals, a former homicide prosecutor who has seen a steady stream of brazen OCSD liars testify in his courtroom in recent years, nonetheless expressed doubt about the ability of proving the existence of a plot. “Officers lie sometimes; I’ve seen it myself,” the judge noted. But he said he can’t imagine how SAPD cops and the OCSD helicopter crew even knew one another well enough to organize a “sophisticated” conspiracy of destroying exculpatory files.

He apparently doesn’t know that for many years, SAPD has assigned an officer, Jeff Van Es, to the OCSD helicopter crew.

The judge told Hover not to be entirely disappointed in the likely Dec. 20 rejection of his motion to dismiss the attempted murder charges before trial.

“An officer said a shot was fired,” Goethals said. “Your expert watched in conjunction with audio and saw no evidence a shot was fired. He should have seen some flash. You are going to argue that when [the cops] said shots were fired, they were lying. Just playing devil’s advocate, [but] you are almost better off [at a future jury trial]. You can say, ‘They lied about it on the one we have, and so it’s logical they lied about the other ones, too.'”

[UPDATE: On Dec. 20, Judge Goethals formally denied the defense request for a dismissal of the indictment against Truong. A jury trial is tentatively scheduled in January.]

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