News

Update: Retired cop hired to investigate report-alteration case

Buckheit pushes for judge-appointed investigator

This is an expanded version of a previously published article.

By Renee Batti

Almanac News Editor

Pete Peterson, an outside investigator and retired police chief, was hired last week to conduct a personnel investigation of the alteration of the police report detailing the 2008 arrest of Atherton resident Jon Buckheit during a domestic violence incident at his home, Atherton Police Chief Mike Guerra told The Almanac on Dec. 6.

Chief Guerra said that Mr. Peterson is a retired police chief, although he was uncertain which police force he retired from. A search turned up a person by his name who retired from the Clayton (Contra Costa County) police force.

Chief Guerra said Mr. Peterson also served in a command position with the Oakland Police Department. He said he had met Mr. Peterson a few weeks ago, and that he had been recommended to him as someone who conducted such investigations.

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 Atherton release to read Chief Guerra's statement about the investigation.

Comments

Like this comment
Posted by An Atherton neighbor
a resident of Atherton: West Atherton
on Dec 8, 2010 at 12:24 pm

What puzzles me is why Chief Guerra only initiated an investigation now, a year later, after Jon Buckheit made this all so public, once again. He ahd all the information and could have done so on his own initiative, which would have looked more plausible.


Like this comment
Posted by Atherton taxpayer
a resident of Atherton: Lindenwood
on Dec 8, 2010 at 12:59 pm

Why are you puzzled? It's called the Blue Code of Silence, and Guerra, a career cop, is part of it. It's much more likely for cops to follow the Blue Code of Silence if they are part of the same organization their whole lives, and have long-standing relationships with the officers they are protecting. That's why it was a mistake for Atherton to keep promoting from within.

The rationale for the Blue Code of Silence for a cop is that: (1) at some point in your career, you will make a mistake and need to benefit from the Blue Code of Silence as well, or (2) at some point in your career, you did make a mistake, and have benefited from the Blue Code of Silence, so either way, you need to protect your fellow officers, even if they are wrong.

You think this is just in a Martin Scorcese or FF Coppola movie? It's not. If you have a friend or family who is a police officer, and they are being honest, they will admit this is a big part of many police organizations.


Like this comment
Posted by Jerry
a resident of another community
on Dec 8, 2010 at 1:05 pm

Right. And don't expect the chief to admit it. You need to look at his actions, not listen to his words. I'm sure the cop they've hired to police the cops is part of the same fraternity.


Like this comment
Posted by Here's a thought
a resident of Atherton: other
on Dec 8, 2010 at 1:14 pm

The reason is that by now, after more than two years, there are many people implicated the mishandling of this case.
The bread crumb trail likely goes strait up through one or two ex Chiefs and may lead beyond even the DA's office to the rest of the people at the top who like to quietly settle these matters in some back room. That's a paralyzing amount of pressure on Guerra for something that did not even occur on his watch.


Like this comment
Posted by John P Johns
a resident of another community
on Dec 8, 2010 at 1:59 pm

During the past decade there's only been one cop convicted of a crime in Atherton. His name is Clark Yee. He was alleged to have stolen golf clubs and then to have falsified a police report documenting his participation in the investigation of this "crime".

Clark Yee was present when I was detained on the morning of August 29, 2007. He made no mistake about the fact he did not like what he saw. He made it clear that he did not desire to take part in the Police Department's abuse of power.

Through a series of public records requests, I have learned that the report surrounding my detention contained material miss-statements of fact.

I am left to wonder why the Atherton Police Department and the San Mateo County District Attorney were so quick, so decisive to act in Clark Yee's case, yet so reluctant to act on my complaint?

I am left to wonder whether there is any connection between Mr. Yee's display of disgust for the actions of Tim Lynch, Tim Marks, Sherman Hall, Kristin Nichols, Bob Brennan, Glenn Nielsen and Eriic Grimm during the week of August 27th and his subsequent persecution.

I sincerely hope that the DA and Chief Guerra re-open the Clark Yee case and that they act on my criminal complaint.

I know what it is like to be falsely accused of a crime. Thankfully, I can only imagine what it might to be falsely convicted of one.


Like this comment
Posted by Steve
a resident of Menlo Park: Downtown
on Dec 8, 2010 at 3:04 pm

I think this APD Office was on video tape sells the clubs in San Bruno? So what false arrest or charges were made on Officer Yee, he stole and sold the clubs with the victime name on them. Dah!


Like this comment
Posted by Here's a thought
a resident of Atherton: other
on Dec 8, 2010 at 3:49 pm

Chief--"Hey Officer Clark, you live up in San Bruno, could you drop these clubs off on your way home. Be sure to get the receipt."
Did they get him on the store tape-you betcha


Like this comment
Posted by tripple duh
a resident of Atherton: Lloyden Park
on Dec 8, 2010 at 3:57 pm

Troy Henderson was arrested and prosecuted on charges of battery. His exchange with Pilar Buckley was captured, oh so conveniently on video. Steve from Menlo Park might think this incident wasn't a set up either.

Chief Brennan had former finance director John John' office raided his office because the Chief alleged a computer in his office that was used for spare parts was "vandalized". Steve from Menlo Park might not think this incident was a set up either.

Brian Bothun had his computer siezed when he was involved in a domestic dispute. The DA subsequently prosecuted him for posessing naughty photos after a forensic examination (under questionable pretenses was performed by REACT). Steve from Menlo Park might not think this incident was a set up either.

Clark Yee was asked to investigate the theft of golf clubs. A resident from Atherton miraculously identified these clubs (which did not have his name on them) in San Bruno of all places. The pattern of activity just doesn't smell right.

It seems as though the Atherton PD is either brilliant, or damm lucky or crooked.

I think the latter is most likely.

For the Chief of Police Mike Guerra not to suspect his force is rotten suggests that he too is rotten and sees nothing wrong with his force or Chief Guerra is naive.

In either case Guerra is no longer fit to be chief.


Like this comment
Posted by Prime Suspect
a resident of Atherton: other
on Dec 8, 2010 at 4:07 pm

Mike Guerra is now [portion deleted.] There are far too many suspicious things that have gone on with him either in charge or in a senior position with the force.

On the Clark Yee case, Guerra was asked about how it came to be that Clark Yee was assigned to the very case he later became a suspect in.

Guerra was also asked about how it could have been that an Atherton resident went all of the way to San Bruno to shop for golf clubs.

Guerra was asked about how this resident could have picked his clubs out from the multitude of offerings by this warehouse sized store.

Chief Guerra's reply was that the coincidences were quite remarkable, fantastic even. For Chief Guerra not to suspect something was rotten in the Yee case is a true tell sign Guerra is either [portion deleted] or hopelessly gullible.

I don't care which is true, he should be replaced immediately and an independent inquiry should be initiated.

The Atherton PD has lost all credibility in this community.


Like this comment
Posted by marcus
a resident of Menlo Park: other
on Dec 8, 2010 at 4:38 pm

Free Clark Yee!


Like this comment
Posted by Interested
a resident of another community
on Dec 8, 2010 at 6:32 pm

Triple Duh.......I would suggest you be careful whom you defend. I can tell you from personal experience that one of the people you mentioned in your post was no innocent.

The way he spoke to people working in other agencies that Atherton dealt with was obnoxious. Especially black women


Like this comment
Posted by Plain Speaking
a resident of Atherton: Lindenwood
on Dec 8, 2010 at 6:34 pm

Guerra should never have been promoted to Lieutenant, let alone Chief.

He was part of that crowd in the PD that was aligned with Lois English and Mike Hood and their developer friends.

Guerra should be fired and replaced with someone from the outside.


Like this comment
Posted by conspiracy theorist
a resident of Atherton: West of Alameda
on Dec 8, 2010 at 6:59 pm

Interested is right about Troy. He had a pattern of conduct with the Town that made him an easy mark for Pilar Buckley. It had "set up" written all over it.

[Portion deleted. Unsupported allegation.]


Like this comment
Posted by What about Guerra
a resident of Atherton: other
on Dec 8, 2010 at 10:56 pm

What I want to know is who will be investigating the Chief for failing to act on incriminating informaiton that the Chief has had in his possession for over a year.

Isn't this what they call obstruction of justice?

Oh never mind, this is what the Town is having Buckheit do in his federal lawsuit.

They should just appoint Buckheit and hand over the entire city treasury to him. He's gonna own the town after this is over with the way things are going.


Like this comment
Posted by Tim Wulff
a resident of another community
on Dec 8, 2010 at 11:03 pm

I'm thinking that the only reason they hired an outside investigator is because there is no intention to find wrongdoing.

If they don't prosecute, it makes the Town look bad. If they don't prosecute and it's an outsider finding it's all good, it's not on them.

This isn't that hard. It's a simple matter. It's felony testified to in court with factual evidence.

If they were going to find wrongdoing, they would have just done it because it would enhance the Town and the Department's reputation as clean good guys.

I come to the conclusion that outsourcing means a finding of no wrongdoing.

It's all I can see happening. Nothing else makes sense.

Outsourcing is their fall-back position when ignoring it didn't work.

It's all very obvious to me.

Post Script: Mr. Gibboney: Seems this article which is of a sensitive nature was sort of double posted. Is this an attempt to divert attention from the potent comments attached to the initial article? If this is a technique you are employing to suppress comments. It will now be observed. I copied mine up here again and want to point out to readers the cogent and accurate points contained in comments on a nearly identical article posted below...DON'T MISS IT.


Like this comment
Posted by insider
a resident of Atherton: other
on Dec 8, 2010 at 11:12 pm

You don't even want to know how many people have suffered abuse at the hands of the PD.

I've worked here a long time. I can tell you alot of stories.

The only distinction between Buckheit's and Johns' experience and that of countless others is that the two of them had the courage to stand up to the PD.

I remember what happened to Bothun. Man they crushed that guy and for what? Naughty photos that didn't turned out to be photos of adults and a bit of weed? Come on....


Like this comment
Posted by Credibility
a resident of Woodside: other
on Dec 9, 2010 at 9:48 am

I agree with Prime Suspect:

"The Atherton PD has lost all credibility in this community."

There's a perspective in the Police business that, "Security Guards are wannabe Police Officers." I bet many surrounding agencies believe "APD," is "the Security Guard," in the above analogy. How do we continue to have trust in the Police?

... And please leave C.Yee alone. I've encountered him yearsback and he treated me with the utmost respect. (If you're reading this, thank you for your help during my bike accident) For all we know, he's living a great life somewhere away from all this APD B.S. He probably plea bargined (to other Steve Wags' charges) without a fight just to leave a dysfunctional PD.


Like this comment
Posted by John P Johns
a resident of another community
on Dec 9, 2010 at 10:06 am

Dear "Credibility"

I am afraid I can't leave Clark Yee alone. One of the reasons that I can't let this go is that I know the feeling of betrayal. I thought I had a good relationship with the PD. I saw these guys every day. I worked hard to get them top dollar for their equipment, for their salaries and benefits, for whatever.

Just like that, the Police Department turned on me, as though it were an ill bred German Shepard.

Clark Yee, unlike the other five officers who were present during my detention on the morning of August 29th, 2007, treated me with utmost respect as well.

My concern is that he was driven out of the department because he refused to "go along to get along".

Clark Yee was employed by Atherton for five years. Like me he had a spotless if not stellar record of service with Atherton and with his previous employers.

Clark Yee's carreer as a peace officer is over, gone is his ability to earn service credit towards 3% at 50. Gone is the ability to earn over $100k per year.

I know after having spoken with Mike Guerra that there is no record of Clark Yee being present when I was detained. This I find to be suspicious. As I have said on numerous posts, Clark Yee was there. He looked me right in the eye, without speaking he made it clear just how disgusted he was with the conduct of his colleagues.

I will always remember how, Officer Yee could communicate compassion for me and disgust for his colleagues at nearly the same instant. If I could recognize this while in a state of shock and bewilderment at how I was being treated, you bet the other officers present could as well.

I firmly believe Clark Yee was set up on the rap of stolen golf clubs. He was a threat to Nielsen and to the corrupt structure Nielsen painstakingly built over the years and that remains in place under Guerra.


Like this comment
Posted by charlie wilkerson
a resident of Atherton: Lindenwood
on Dec 9, 2010 at 12:13 pm

The headline of this article says it all. All Guerra wants is a whitewash.

The report of a fellow cop won't be worth anything. Especially from one who worked for two of the most corrupt law enforcement agencies in the state.

Get real Guerra.


Like this comment
Posted by Tim Wulff
a resident of another community
on Dec 9, 2010 at 12:37 pm

Outside investigator hired to review Atherton police report-alteration case

This title is located below this article.

Be sure to read the comments contained on this article. They are cogent comments place by sound and creditable folk.

Don't miss these comments!!


Like this comment
Posted by Michael G. Stogner
a resident of another community
on Dec 28, 2010 at 12:44 pm

Santa Clara Police do it right, they identify and charge the bad cop.

Web Link


Sorry, but further commenting on this topic has been closed.

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