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By Alex Horvath /The Californian
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By Photo courtesy of the family
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By STEVEN MAYER, Californian staff writer firstname.lastname@example.org
Responding to what he called a case that “has consumed the media and our community,” Kern County Sheriff Donny Youngblood said Tuesday he has asked the FBI to conduct a “parallel” investigation into the death of Bakersfield father of four David Sal Silva, who died May 8 after he was beaten by deputies.
Youngblood’s call to the FBI — he termed it “unprecedented” — was made after it was discovered that video evidence expected to be found on one of two cell phones confiscated last week from witnesses was not present on the phone.
- 'First Look': Attorney 'shocked' phones in Silva incident turned over to BPD
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- 911 tape: Witness says man is beaten by deputies
- Deputies' video confiscations come under scrutiny in fatal Bakersfield beating case
- Debate erupts over cell phone video of Silva beating by officers. Witness: "I can still hear him."
- Dad who died during arrest 'begged for his life'; witness videos seized
“Yesterday afternoon I was briefed by my staff that the two cell phones had been taken to the Bakersfield Police Department, and during the analysis, one cell phone had no video,” Youngblood said Tuesday at a press conference. “The second cell phone had a video.
“It immediately concerned me,” he said. “I met with my staff yesterday afternoon and I made a determination to do something that’s unprecedented. I called the FBI and I asked the FBI, number one, to take the phones and see ... what’s on the phones, and number two, could something have been removed from these phones, and if so, can we show that something was removed.”
Witnesses to last week’s incident, and their lawyer, expressed outrage that video evidence was said to be missing or nonexistent on one of the phones. They said they watched the video following the incident to confirm that they had captured it intact.
The sheriff said he doesn’t know whether the second video ever existed. But if it did, and someone in law enforcement tampered with or deleted it, that person has broken the law.
“If we did something wrong, I’ll tell you we did something wrong,” he said. “If we didn’t, I’ll tell you we didn’t.”
Youngblood said he turned over the phones to the BPD on Friday in an effort to avoid the appearance of any conflict. And it was the first time, he said, that he has turned to the FBI in this way.
Youngblood also said that the six sheriff’s deputies and the sergeant involved in last week’s incident are in the process of being placed on paid administrative leave, primarily for their own safety. Email threats have been received, he said, and the department is taking them seriously.
Sheriff’s personnel took the phones to the FBI’s Sacramento office Tuesday, Youngblood said.
Bakersfield police officials said Tuesday that they began a forensic examination of the phones Friday at the request of the sheriff’s department. On Tuesday, the phones and the data copied from them were given back to the sheriff’s department.
Police stressed in a news release that the phones were returned in the same condition, with the same contents intact, as when they were first provided to the BPD. The original contents were not corrupted in any way, officials said.
The BPD will maintain a digital copy of the phones’ contents. The examination is continuing and will be provided to the sheriff’s department when completed.
The controversy, which has since captured the attention of readers across the country and around the world, began in the waning minutes of May 7 when a sheriff’s deputy with a canine tried to take Silva into custody after law enforcement received a report of a possibly intoxicated man outside Kern Medical Center.
Moments later, more deputies and two California Highway Patrol officers arrived. Baton strikes and the dog were used to subdue Silva, who later died at KMC.
But witnesses have said Silva was lying prone on the ground and begging for his life when officers were striking him.
The incident and the way sheriff’s deputies treated witnesses who took video of the incident have made national news. The witnesses have described being detained in their homes for hours as search warrants were being requested and obtained.
Youngblood said he understands the public’s interest in and concern with the circumstances surrounding the Silva incident. He said it concerns him, too, otherwise he wouldn’t have taken the extraordinary step of calling in the FBI.
Not only did he ask the FBI to examine the phones, he also asked the bureau to conduct what he called a “parallel investigation” of the incident itself.
“I feel it’s critical for the public,” he said. “Because I know there are questions out there and there are questions in my head about what we’re doing, how we are doing it, and whether we’re doing it right.”
But he countered calls by the public for the investigation to be taken out of the hands of law enforcement.
The department has been effective in recent years in policing itself, Youngblood said. He argued that his administration has been aggressive in investigating wrong-doing by deputies and recommending prosecution against those who break the law or violate departmental ethics.
Youngblood wouldn’t discuss the details of the beating incident, as he expects it to be litigated in court at a later date.
But there’s a lot that isn’t yet known, he said, including how many “compliance” strikes deputies administered with their batons, where those blows struck Silva and, finally, the cause of Silva’s death.
With few exceptions, baton strikes to the head are not allowed as a matter of policy, he said.
But he said the department isn’t callous to the emotional impact of Silva’s death on his family.
“We’re not just cops, we’re people, too,” Youngblood said. “I totally understand what they think and where they’re coming from. I totally do.”
Speaking at a few minutes after 4 p.m., Youngblood said he watched the available video for the first time a few minutes before the news conference. He declined to comment on the content of the video.
He also revealed that in the hours following Silva’s death, investigators consulted with the Kern County District Attorney’s office.
“Our instructions, the advice, was take that phone. Don’t fool with it. You have to have all the information on that phone,” he said.
The “best evidence rule,” Youngblood said, holds that the original evidence is always better than copies.
Youngblood said he sympathizes with the witnesses whose cell phones were taken, saying he also might be offended if it happened to him. And he expects the phones to be released to their owners within the next few days.
One question coming out of this case may need to be answered by the courts. Does the law support the detention of witnesses for up to eight hours in an effort to obtain possible evidence?
It’s not uncommon for police to contain a scene before a search warrant if obtained, he said.
“What makes this case different, in a sense, is that these people were not suspected of a crime. They just had evidence,” he said.
“I think the courts ultimately will make that decision whether we did something right, wrong or indifferent, from a legal standpoint.”
When asked about the FBI now being included in the Silva incident, attorney John Tello, who is representing some of the witnesses, said he’s glad an independent agency is looking into the investigation.
“I guess the sheriff’s department is trying to layer another authenticity to the investigation but they should have brought on the FBI since the beginning,” he said.
But Tello was not pleased when Youngblood said no video was found on one of the phones confiscated from Tello’s clients. The attorney said he was told by the owners of the phones, Francisco Arrieta and Maria Melendez, that both phones did indeed contain video recordings.
“Francisco has three different clips he recorded and he said that if anything was tampered with, he would know because he knows how long each video was,” Tello said.
The news that one video was not found by investigators sparked fury in Melendez and her daughters Tuesday.
“I was standing closer to the scene than Pato (Francisco) and in his videos you can see me video taping what was going on,” Melendez said frustrated. “I don’t know which video they deleted but if they deleted mine, it’s not fair because they are turning everything around and covering themselves.”
Melendez’s daughter Melissa Quair was upset when she heard the news but said she already had a gut feeling that only one video was going to show up in the end.
“It’s sad because we had two phones recording and now that it’s not there, there isn’t a way for us to get that back,” Quair said.
Quair said she and other family members reviewed the videos outside of Kern Medical Center a few minutes after the ambulance arrived to take Silva away.
“We all watched the different videos my mom and Francisco had taken,” Quair said, “and my mom’s video actually showed a deputy who tried to cover his face when she was recording.”
— Staff writers Jason Kotowski, James Burger and Laura Liera contributed to this story