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Council Addresses Police Theft Case

By Judith Scherr
Friday February 01, 2008

It took more than two years for questions surrounding criminal activities in the Berkeley Police Department to reach the City Council, but when the Police Review Commission report on Evidence Theft was before them Tuesday evening, councilmember reactions were heated. 

They wanted to know why police supervisors had failed to see problems within the department and condemned the Berkeley Police Association for refusing to cooperate with the commission. They unanimously approved reports from both the city manager/police chief and from the commission, and asked for followup in March.  

In other actions, the council went on record calling on the governor to withdraw the California National Guard from Iraq, asking Congress to reaffirm the existence of the Armenian genocide and adopting a policy, where practical, to cease purchases from Chevron Corp. They also raised meter parking fees from $1 to $1.25 per hour, asked the city manager to look at how the lying-on-the-sidewalk ordinance would be implemented and made Berkeley a sanctuary for medical cannabis users and dispensaries. They also heard a presentation on a city plan to address global warming.  

The Police Review Commission report, unanimously approved by its members and written by a subcommittee that studied the issue for more than a year, focused on the theft of drug evidence from the locked police vault by former Sgt. Cary Kent, who was convicted in April 2006 on separate felony counts of grand theft, possession of heroin and possession of methamphetamine. 

Kent pleaded guilty, served a year of home detention and is now on probation. He was never interviewed by police or the district attorney. 

The council voted unanimously to accept the commission report and recommendations from both the city manager and the commission—the city manager’s report had rejected two of the commission’s recommendations—and to have the commission return to council in March, with details on unanswered questions. And the chief will report at that time on the reforms he has accomplished within the department. 

“I’m very concerned about the lack of response from the supervisors,” said Councilmember Linda Maio. “There seems to be no performance review.” 

Maio was reacting to sections in the PRC report that detailed aberrations that had been noticed in Kent’s behavior for more than two years before he was placed on a leave of absence and allowed to resign from his position, according him benefits and retirement pay for the approximate 18 years he served on the Berkeley force.  

The behavior included not showing up for work or meetings, showing up late and being at the police department at odd hours of the night looking disheveled. 

“What most disturbed me was a lack of cooperation [in the investigation] from line officers,” said Councilmember Laurie Capitelli. 

In fact the Berkeley Police Association attorneys told the commission that they would not submit to questioning by the PRC, alleging that such an investigation would be contrary to personnel privacy guarantees. 

“We come up against this wall of silence,” said Councilmember Max Anderson. 

“Our greatest problem in conducting this investigation was the lack of cooperation by the Berkeley Police Association, which, as it turns out, virtually controls, with the assistance of their lawyers, the behavior of the sworn police officers vis a vis the Police Review Commission,” said PRC Commissioner Sherry Smith, a subcommittee member. 

“Our investigation would have been completed much more expeditiously had we had a modicum of help from the rank and file.”  

A registered nurse, Anderson said he was particularly disturbed by a lack of tight controls over the drug evidence, controls he said are strictly maintained in hospitals where he’s worked. 

Capitelli said he didn’t understand why Kent had not been compelled to divulge information such as the quantity of drugs taken. Hambleton explained that it was not up to him, but up to the district attorney to demand he answer questions, to which Capitelli retorted: “You can send him to jail.” 

In the PRC’s 200-page report is a copy of a statement released by the city manager April 14 2006 the day Kent pled guilty to the charges. “Kent submitted a letter in March 2006 announcing his retirement rather than cooperate with BPD Internal Affairs staff regarding this audit.” 

When Hambleton responded to Capitelli that, as a first-time drug offender, Kent actually got a harsher sentence than most drug abusers, who are generally given diversion, a number of people still in the Council Chambers at the 11 p.m. hour groaned and jeered. 

While the chief and the commission agreed on most of the recommendations to tighten controls in the department, two issues divided them: commissioners said all the people working in the unit with Kent should be moved out of the Special Enforcement Unit (SEU) as a group.  

Hambleton told the council that would be unfair: “There was no evidence whatsoever of any misconduct on the part of the two employees. We don’t think it would be fair to transfer them because a transfer would be viewed as punitive,” he said. 

Subcommittee member Andrea Prichett told the council that in Boston officers were immediately transferred out of the unit when impropriety was suspected.  

An accounting of how Boston police are dealing with a suspected theft of drugs is detailed in a Jan. 5 Boston Globe story “Police find widespread drug tampering.” The article says that the drug evidence tampering sparked “an audit of all department units, including hiring and personnel.” 

The Globe story quotes Police Commissioner Edward Davis saying, “We’re really going to shake the place out and make sure that every department is up to national standards.” 

The other outstanding question was that the commission wanted a thorough investigation into the amount of drugs missing from 286 envelopes containing drug evidence that investigators found may have been opened. The police investigation only looked at a few envelopes, enough to charge Kent with the three felonies. 

The chief said it would be too expensive to have a lab investigate these envelopes, but he sent a memo to the commission last week, quantifying the amount of drugs recorded on the 286 envelopes. According to the memo, that added up to: 1.6 pounds of methamphetamine (powder and crystal), 9 ounces of heroin (tar, powder and liquid), 1.5 ounces of cocaine (rock and powder), 5 pounds of marijuana, 1 ounce of hashish, and 235 pills including Vicodin, ecstasy, Oxycontin, Tylenol/codeine and fentanyl. 

“I don’t believe he took drugs from every single one of those envelopes,” Hambleton said. Nevertheless, the chief said he checked with a number of experts, whose conclusion was that the amount of drugs in question was consistent with use by one person. 

In the memo, he wrote: “Except for the marijuana, there was a consensus [among experts] that these amounts are consistent with what a light to moderate user would consume within a one year period.” 

Attorney Jim Chanin, who served on the subcommittee, told the council the chief was wrong. “He’s talking about a light to moderate user. I don’t know what he’s talking about. I add this up at two grams of meth a day; the combination of drugs is not consistent with a single user.” 

In addition, Chanin told the council, “buried in the report that you have, there was evidence developed by the police department, that Cary Kent was buying drugs from a confidential informant while he was on duty, even though that was not his job.” This was not followed up in the investigation. 

Prichett told the council that the investigation was lacking because it never asked whether Kent was acting alone. “They decided that Kent was the guilty party and built a case against him,” she said. 


Lying on the sidewalk 

Councilmember Linda Maio said she had been concerned about an ordinance approved by the council in December which gives police the right to cite individuals lying on the sidewalk, though it makes citing at night low priority. 

She said she was concerned that people who had nowhere else to go would be given citations. 

So she and Councilmember Laurie Capitelli wrote a resolution, passed unanimously by the council Tuesday night, to ask the city manager to suggest a policy “that would require no (or low) enforcement of [the law against lodging on the sidewalk] at night if no shelter beds are available.”  

If they are available, the resolution says that, in addition to offering the person a bed, transportation by taxi to a shelter would be included in the mix, paid for by scrip. 

Councilmember Dona Spring had a number of questions regarding the proposal. She asked what would happen to people who want to go to a shelter, when the shelter has rules that they can sleep there for 30 days, then must wait 60 days before returning. And, she wanted to know if people could enter during the night, as most shelters have a curfew for entry. 

Maio said she had talked to service providers who said they would make exceptions for people entering the shelters late, but that she hadn’t considered the problem posed by shelters that don’t allow persons to stay there more than 30 days. 


Medical cannabis sanctuary 

The council unanimously approved a resolution sponsored by Councilmembers Darryl Moore and Kriss Worthington opposing attempts by the U.S. Drug Enforcement Administration to close medical marijuana dispensaries and declaring Berkeley a sanctuary for medical cannabis use, cultivation and distribution.  

The resolution directs the Berkeley Police Department and city attorney not to cooperate with DEA investigations against physicians, patients or their caregivers and medical cannabis dispensaries operating in accordance with California state and local law.  

At a press conference before the council meeting, Worthington said the DEA should not “use precious resources harassing patients, dispensaries and their landlords.” 

At the meeting, medical cannabis user Pat Crossman, who has arthritis and walks with the aid of two canes, told the council she has been using the medicine for 10 years. “It’s helpful for easing the pain,” she said. “I would be very upset if the feds came in and busted us or frightened us—we’re doing the best we can.”