Chief Guerra announced the investigation in the wake of Mr. Buckheit's revelation last week of who altered the report — information gleaned from a police computer database log. On Dec. 1, Mr. Buckheit sent a letter to the police chief naming Officer Dean DeVlugt as the person who changed the report, at the same time filing a complaint with the department.
A copy of the database log, which Mr. Buckheit obtained during the discovery phase of his federal lawsuit against the town, shows that Officer DeVlugt changed the police report filed by another officer hours after Mr. Buckheit's arrest. A copy of the log was attached to Mr. Buckheit's Dec. 1 letter and complaint to Chief Guerra.
The change made in the report identifies the young son of the woman involved in the domestic dispute as a victim of a "physical/strong arm" assault, according to the log, a copy of which was obtained by The Almanac. The boy had previously been listed as a witness.
In his letter to Chief Guerra, Mr. Buckheit called for a "prompt and decisive investigation" of the matter.
The personnel investigation is likely to be one of two concerning whether the report's alteration was a criminal act or legally permissible. Mr. Buckheit told The Almanac that he will reverse an earlier decision and allow the San Mateo County District Attorney's Office access to his police report, which was sealed by the judge who granted Mr. Buckheit a declaration of factual innocence earlier this year.
Mr. Buckheit has withheld access to the report since the D.A.'s office was asked to investigate last March, insisting that it would be inappropriate for that office to investigate because it has a conflict of interest: The county is a defendant — along with the town of Atherton — in a $10 million lawsuit Mr. Buckheit filed last year.
Rather than the D.A.'s office involvement, Mr. Buckheit pushed to have the investigation forwarded to another agency, such as the state attorney general's office.
Chief Deputy District Attorney Steve Wagstaffe said on Dec. 3 that if the report is released, "That will be great. ... We will then investigate the matter."
In a statement posted on the town of Atherton's blog over the weekend, Chief Guerra outlined the process for an internal investigation, saying that when the department "receives a Citizen's Complaint or discovers alleged acts of misconduct from internal sources, the allegations are analyzed to determine if they are potentially criminal in nature and/or alleged violations of the Department's standards of conduct."
If an alleged violation is possibly criminal, two investigations must be conducted, he said. The facts gleaned in a personnel investigation, however, can't be shared with the criminal investigator, he added. That's because the personnel investigator can require employees to talk, setting aside their constitutional protection against self-incrimination, Mr. Guerra explained, adding that an employee who refuses to cooperate can be fired.
Chief Guerra said he believes the internal investigation will be wrapped up "within weeks."
Atherton had access
When the judge sealed the police report and other documents related to the matter, there was one exception to the order. In his letter to Chief Guerra, Mr. Buckheit noted that the judge "specifically (and at the request of the attorneys for the Town of Atherton) authorized you to investigate this matter, and have access to any information that was sealed by the factual innocence order to do so. …"
Although Chief Guerra has now authorized the personnel investigation by an outside party, Mr. Buckheit is urging him to allow a judge or retired judge to appoint an investigator "based on his or her own judgment," and to supervise the investigation.
"In this way, the results of the investigation will be immunized from being challenged as unfair in any way," he wrote in a Dec. 5 letter to the police chief.
Mr. Buckheit told The Almanac this week that if a judge-appointed investigator determines that the police report-alteration was a mistake rather than an intentional criminal act, he would be willing to live with the determination.
In his Dec. 5 letter, Mr. Buckheit requested that the chief arrange to have the city attorney and Robert Carey, Mr. Buckheit's attorney, jointly submit the matter to a judge. "I believe this is the best result not only for me, but also for the Town of Atherton and its Police Department," he wrote.
"To be clear, if you choose not to adopt my suggestion on how such an investigation should be conducted, I am requesting that the City Council instruct the City Manager to direct you to do so."
The arrest and aftermath
The domestic violence incident occurred on the night of Oct. 19, 2008. Mr. Buckheit called the police for help, reporting that he had been assaulted by his then-girlfriend, who lived at the residence. Although Mr. Buckheit was the person with visible injuries, he was arrested. The District Attorney's Office soon after decided not to file charges after reviewing the case.
Months later, when Mr. Buckheit obtained a copy of the police report after suing the town to get it, he was shocked to see that, in addition to the claim that he had assaulted his girlfriend, the report included a charge of assault against her son.
In January of this year, Mr. Buckheit was granted a declaration of factual innocence in San Mateo County Superior Court. Mr. Buckheit's Dec. 1 letter to Chief Guerra comes nearly one year after Atherton police officer Tony Dennis testified during the factual-innocence court proceedings that, although the police report bore his signature, the section recommending criminal charges for assaulting the child was not written by him.
During the trial, Judge Mark Forcum stated that "there's absolutely no basis to believe that Mr. Buckheit ever laid a finger on the child," according to the court transcript.
A question of procedure
Apart from whether the report's alteration was an intentional falsification, another question to emerge is whether department procedures for adding information to the report were followed.
When police reports are changed, they often are done so by way of a supplement — a method Mr. Wagstaffe of the District Attorney's Office describes as "the best way to do it," although not required by law.
In the Buckheit case, the child assault allegation was added shortly after 10 o'clock the morning after the arrest, but the addition was made directly to the electronic report filed by Officer Dennis, rather than with a supplement.
Chief Guerra said this week that police reports are typically added to as new information comes in, and are reviewed and edited by supervisors. Some changes don't require a supplement, he said, adding that often whether a supplement is used to change a report "depends on what stage that change gets made." For example, he said, once a report is sent on to the D.A.'s office, changes are made via supplements.
But he said that when a supervisor changes a report, the report is sent back to the officer who originally filed the report. It is unknown whether Officer Dennis was sent a copy of the altered report. In his testimony during the Buckheit factual-innocence trial, Officer Dennis was asked whether someone had changed the report or added the child assault charge; he responded, "That appears what happened, that appears to be what have happened, yes, because I do not remember putting that in there, nor was that my intention."
Go to tinyurl.com/34a3pdh to read Chief Guerra's statement about the investigation.