By Carolyn Bick
Republished with permission
When they read the report by OIR Group that looked into how the King County Sheriff’s Office handled the investigation into Tommy Le’s death, the Le family was surprised to read how much appeared to be working in favor of the sheriff’s department and the involved deputies, Tommy Le’s aunt Uyen Le said.
“When we received the report and the findings, it’s very obvious to us — I feel like it’s common sense that a lot of these things should be in place … but they obviously were not. And it just didn’t create a fair and just situation for Tommy. I think everything seemed to be working more in the favor of the sheriff’s department,” Uyen Le told the Emerald in an interview, referencing the report’s recommendations based on its findings.
The findings — compiled into a comprehensive, 42-page-long report that was released in early September — appeared to have a similar effect on at least one King County lawmaker, when report authors Michael Gennaco and Stephen Connolly presented it at the Sept. 2 meeting of the King County Council’s Law and Justice Committee. Upon learning of the findings, Committee Chair and District 2 Councilmember Girmay Zahilay — himself an attorney — said the way in which the King County Sheriff’s Office (KCSO) handled the investigation into Tommy Le’s shooting would appear to be “a clear obstruction of justice.”
In June 2017, KCSO Deputy Cesar Molina shot and killed 20-year-old Vietnamese American student Tommy Le. Le’s death became a high-profile incident, not only for the later revelations that Le did not have a knife, as the KCSO originally claimed — it was later claimed that he instead had a pen — but that he appears to have been running away from responding deputies. The Emerald wrote in extensive detail last week about other previously unreported findings, such as the likelihood that Molina shot Le while Le was falling to or already on the ground; that Le may not have even had a pen; that a KCSO detective appears to have carried out destructive testing on evidence; and that someone appears to have tampered with crucial evidence.
In a phone interview with the Emerald, Gennaco discussed a couple of specific practices the OIR Group report identified that persist to this day. One of these practices involves the voting membership of the KCSO’s Critical Incident Review Board (CIRB), which was called the Use of Force Review Board at the time of Le’s death.
The CIRB, which is meant to determine the appropriateness of use-of-force incidents, consists of at least seven people, but only five must be present to constitute a quorum. Though the Office of Law Enforcement Oversight (OLEO) Director or the director’s designee is included on the board, that person does not have voting power. The board’s voting membership consists of the Undersheriff; the Chief of Patrol Operations or a designee; a patrol operations captain whom the Undersheriff specifically chooses; a sergeant from the Advanced Training Unit; a KCSO union representative; and a Sheriff’s Department legal advisor.
The OIR Group report specifically raised concerns about the fact that a union representative and a legal advisor were and continue to be a part of the CIRB’s voting membership. The report states that both of these CIRB members having voting power “is inconsistent with their customary role,” a sentiment Gennaco reiterated in his interview with the Emerald.
For one, he said, the presence of a guild member would lead an officer to assume that guild member will always vote in their favor. “I think it would necessarily create tensions” within the guild not to do so, Gennaco said.
“All incentive … as the advocate is to vote in support of anything the deputy did and never to find any shortcomings with regards to anything the deputies did,” Gennaco said. “So, it’s almost an automatic vote for the deputy, if you will.”
And the legal advisor?
“The role is more to make sure that everything the body does is consistent with the law — not make the law, not decide on the law,” Gennaco said.
This ties into another concern raised in the report, namely that two of the deputies involved in the Le shooting — Molina, who shot Le, and Deputy Tanner Owens; the report refers to them as “Deputy C” and “Deputy A,” respectively — were brought in before the CIRB for questioning on June 20, 2018 — more than a year after Le’s death on June 14, 2017 — but neither the questions asked of them nor their answers were recorded in any way of which OIR Group was made aware. It is also worth noting, as the report does, that Molina and Owens were brought in after they had submitted written statements and submitted to formal interviews.
When the Emerald asked Gennaco if this meant these deputies in the Le case could have received legal “coaching” to get their stories straight, given the presence of the legal advisor and union representative, Gennaco said, “Who knows? And that is the problem.”
“Certainly, the way in which there is no documentation of what they said certainly allows for those who are critical of the King County Sheriff’s Office to make that presumption, because there is no record of it,” Gennaco said. “It allows for all kinds of interpretations about what the purpose of that visit is, and that’s why it’s bad practice.”
He also said that “it’s extremely unusual for deputies to appear before a body like that, but they do in King County.” Gennaco said this happened in the KCSO’s investigation into the January 2017 shooting of Mi’Chance Dunlap-Gittens, about which OLEO also commissioned the OIR Group to write a report. Though this has changed somewhat, and the KCSO’s General Orders Manual states that deputies no longer come in for CIRB appearances as a matter of course, “if it is determined that a member’s presence is required, those members who are ordered to appear before a Critical Incident Review Board shall do so,” the manual says. This section is noted as having been updated in December 2019.
“That’s way better than what it was, where the presumption is they would come in, but I think it still is a problem,” Gennaco said. “If you want information from the deputies about what happened, and you don’t have it based on their prior statements or interviews, interview them again. Don’t bring them before the board and have them sit there and try to answer questions that are not recorded — and so there is no permanent accounting of what they even told the board. No notes that are prepared after the fact — it’s just a poor way of collecting information.”
It is also worth noting that Gennaco didn’t rule out the possibility of such “coaching,” despite — according to the OIR Group report — the presence of an OLEO representative, whom the report does not name, at the board’s questioning of officers involved in Le’s shooting. The report says that the OLEO representative also “had the opportunity to participate in questioning the involved deputies.” In a follow-up email to the Emerald, Gennaco explained that he was not authorized to name anyone but Tommy Le in the report, but once again did not rule out the possibility of legal coaching behind closed doors.
OLEO Interim Dir. Adrienne Wat told the Emerald in an email that the representative was Rick Fuentes. The Emerald also later found the KCSO’s release on the review board’s findings, which includes the names of everyone in attendance, including the voting membership. These voting members were Undersheriff Scott Somers, Chief Lisa Mulligan, KSCO Senior Legal Advisor Erin Overbey, Det. Jesse Babauta, King County Police Officers Guild representative Steve Eggert, and Capt. Mark Konoske.
But even though KCSO claims that the deputies’ appearance before the board clarified and filled in any information gaps, the OIR report contended that “with the only record of the Review Board proceeding being the summary which contains no information whatsoever of any specific additional information the deputies may have related, there is no way for any attendee to begin to reconstruct what questions were asked of the involved deputies and how well the ‘information gaps’ were filled.”
In other words, without a written record, there is no way for any CIRB members present at the review to accurately remember what was said and therefore no way for anyone else to learn this additional information after the fact. This presumably holds true for any other CIRB interviews conducted in this way.
As of this writing, the KCSO still doesn’t record such sessions, which — given the continued voting membership of the union representative and the sheriff’s department legal advisor — would appear to continue to raise concerns regarding potential legal coaching, as well as questions of public accountability.
The report also pointed out the fact that the review board did not require that investigating detectives conduct more detailed on-record interviews of any of the involved deputies. This would appear to mean that even the CIRB’s own off-record questioning — which the report says KCSO claimed was extensive and allegedly filled in missing information — was hobbled out of the gate, as its “fact set was compromised as a result of deficient interviews of” Molina and Owens.
Additionally, the report says, the entirety of the KCSO administrative review process failed to consider the fact that Molina appears to have fired stray rounds into a nearby house, even though these bullet strikes were well-documented. One of the bullets went through a window, while another went through a drain pipe, and a third hit the side of the house’s garage. A fourth bullet hit a fence.
“Stray bullet strikes merit attention as evidence of deadly force rounds that have missed their intended target and created potential danger to uninvolved third parties,” the report says. “However, the shooter deputy was not asked about the rounds that were off-target, nor was there meaningful investigation into the risk presented by the occupied residence as backdrop for the rounds. Finally, there was no evidence of follow up by KCSO to facilitate compensation for affected parties.”
While the report does not suggest Molina should have been disciplined for these stray rounds, Gennaco said it was a problem that the issue does not appear to even have been analyzed at all. While he acknowledged the situation was “obviously dynamic,” Gennaco said this doesn’t excuse the lack of analysis into the bullets that went off-target.
“Whenever stray rounds are fired and go into houses and potentially endanger individuals that are not involved, in my view, it’s incumbent upon the agency to not only just observe it, and note it, and document it, but to try to figure out why — why did those shots go so far off target?” Gennaco said. “But the sheriff’s office didn’t do that, didn’t do any analysis of the stray rounds, and didn’t even ask the involved deputy about it.”
The report touches on both Molina’s and Owens’ compulsory written statements, which were submitted nearly 48 hours after the shooting, and notes that neither deputy was interviewed until five weeks after the shooting. The report says these late interviews contributed to the lack of information, as time has not been shown to sharpen a person’s memory. The report also notes in a footnote that “[i]n our experience, it is the rare law enforcement agency that allows an officer who uses deadly force to write a report first instead of being interviewed.”
The report also says that it is unclear whether Molina and Owens “collaborated or received assistance from their legal representatives in preparing their reports,” meaning the written statements referenced above. This does not appear to be illegal, and the report never suggests that it is — “it is unclear under current KCSO protocols whether deputies are even prohibited from receiving assistance from counsel or other deputies prior to preparing their report,” the OIR Group report says — but KCSO appears to have bridled at what it appears to have considered a suggestion of “‘inappropriate collusion’ by the deputies in preparing the report,” according to the OIR Group report’s footnote on the matter, which partially quotes KCSO’s response.
“We cast no such aspersions,” the OIR Group report reads. “Our point here is that a timely interview provides a preferable method of collecting information about an involved deputy’s observations and decision-making including eliminating the risk of influence from outside sources.”
However, in a pre-trial hearing on Oct. 15, 2020, Le family lawyer Philip Arnold, of Campiche Arnold, PLLC, brought up the possibility of collusion between Molina and Owens “through the medium of an attorney to come up with similar stories,” as the statements deviated enough from the supervisor checklists filled out at the scene by KCSO Sgt. Ryan Abbott to raise concern. The Emerald previously wrote about the fact that these checklists listed whether Le had a weapon as “Unknown,” which is not what either Molina or Owens said in their written statements. Molina specifically said in his written statement that Le was carrying “a dark pointy object,” and Owens said that he “could see there was something in [Le’s] right hand.”
While Molina’s lawyer Tim Gosselin, of Gosselin Law Office, pushed back against this contention, Judge Thomas S. Zilly said he didn’t see why he should block Campiche and Arnold from developing this issue at trial.
“It seems to me if a witness says one thing immediately after the shooting, then he talks — it doesn’t have to be a lawyer, could be a sergeant, could be someone totally off-page — but if that person then communicates with the second officer, and the stories change, then why shouldn’t the plaintiffs be able to develop that?” Zilly said. “It’s not the matter that he’s an attorney or not an attorney. It’s that, maybe, there is someone who is talking to both witnesses and maybe — I am not saying it happened — that the stories were changed. Why can’t the plaintiffs develop that?”
Zilly also noted that he will make sure to tell the jury that there is nothing wrong with speaking to a lawyer and that it would be up to Campiche and Arnold to “connect up the dots” to prove some sort of collusion or story-changing collaboration.
At the time the OIR Group was conducting its investigation into the shooting death of Tommy Le, KCSO apparently refused to let either Gennaco or his investigative partner Stephen Connolly speak with the CIRB members present at the involved deputies’ off-record interviews. While the OIR Group report appears to generously give the KCSO the benefit of the doubt, saying that the office “apparently misreads” the request as asking to speak with the involved deputies, not the CIRB members, Gennaco said in his later interview with the Emerald that he believes KCSO knew full well what he was asking for. In fact, Gennaco said, in the Dunlap-Gittens shooting investigation analysis, when he requested to speak with CIRB members, “I was told, ‘No.’”
“I think that those who received the request [in the Tommy Le case] knew what I was looking for and chose not to make people available. And that is unfortunate and disappointing and also unprecedented. I’ve probably done hundreds of reviews like this, and this is the first time that a law enforcement agency said, ‘No, we are not going to let you talk to the people involved in the investigation, no, we are not going to let you talk to people involved in the review process,’” Gennaco said.
And while Gennaco credits KCSO with reviewing drafts and providing feedback in writing in order to help OIR Group piece together and clarify the facts, “emails back and forth are a poor substitute for a conversation.”
In response to the OIR Group report, KCSO Sheriff Mitzi Johanknecht issued a brief letter to the King County Council defending the department’s actions. However, for the most part, she did not address the more substantive issues the Emerald has detailed here.
Johanknecht’s letter touches on the CIRB and the review process only to say that “[t]he review board process did, in fact, include a robust discussion among participants, which included a representative of OLEO who asked many of his own questions.”
“The OLEO’s presence and active participation in the FRB (CRIB) [sic] are not reflected in this report. OLEO had its own information that it could have incorporated into this analysis, yet it is not reflected in this report. There are factual disputes over the events that day, which may ultimately be resolved in litigation,” Johanknecht’s letter reads.
The letter also notes a change to the CIRB process, saying that the CIRB “now considers and answers specific questions including whether the member’s choices leading up to the event were sound and whether there were reasonable alternatives to the use of force. Also the CRIB [sic] adopts or rejects recommendations made by the Administrative Review Team (ART) under [General Orders Manual] 6.02.040(5), 6.02.045, 6.02.055 and provides for assignment to monitor the implementation of those recommendations that are accepted.”
It is worth noting that these changes will not retroactively change the circumstances surrounding the investigation into the death of Tommy Le.
The letter addresses the lack of analysis regarding Molina’s stray rounds in a brief bullet point that reads, “Evaluation of the performance of involved deputies when ‘stray’ rounds have been fired and questioning the involved deputies about any possible ‘stray’ rounds is covered in GOM 6.02.020.”
That particular part of the General Orders Manual was updated in December 2019, and covers the Administrative Review Team (ART). It says that the ART “will review all Critical Incidents, responding to the scene if possible, and completing a review focused on training, tactics, equipment, and policy or procedural issues/violations. The review should also assess the sufficiency of existing policy and training, safety issues, and include recommendations for improvement where applicable.” It is unclear whether the directive to “assess … safety issues” involves thoroughly analyzing stray rounds.
KCSO media representative Sgt. Ryan Abbott said in an email to the Emerald that Johanknecht’s full response to the OIR report will be emailed out but said there is no established timeline yet. Johanknecht’s letter says that the King County Council can expect a full reply to the OIR Group report by the end of 2020.
One of the most disappointing consequences of the lack of information and unexpected fact-gathering obstacles was the fact that Gennaco and Connolly weren’t able to get the Le family all the answers they wanted to, Gennaco said.
“The family is obviously an important recipient of the information. One of the reasons I do this work is for those who have been most impacted by the loss of life,” Gennaco said. “There ends up being unanswered questions.”
The Emerald will release another article looking into the circumstances surrounding and the aftermath of Tommy Le’s death in the coming weeks.
The Emerald originally reported that KCSO Deputy Matt Paul was also brought in before the Critical Incident Review Board on June 20, 2018. Only Deputies Molina and Owens were brought in.