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July 29, 2004 - The San Jose Mercury News (CA)

Drug Agent To Be Tried In Death Of S.J. Man

1st State Justice Officer Indicted For Killing In The Line Of Duty

By Yomi S. Wronge, and Crystal Carreon

Return to Drug War News: Don't Miss Archive

For the first time in California history, a state Department of Justice agent has been indicted for killing someone in the line of duty.

Bureau of Narcotic Enforcement agent Michael Walker will stand trial in the Feb. 17 death of Rodolfo ``Rudy'' Cardenas, whom Walker shot in the back during a botched pursuit in downtown San Jose, a Santa Clara County criminal grand jury decided Wednesday.

Walker, a former Watsonville police officer, surrendered at the San Jose Police Department about 6:15 p.m. Wednesday, and a source knowledgeable about the case said he was booked on a voluntary-manslaughter charge. He was released without bail by about 6:30 p.m.

The grand jury's decision came after less than a day and a half of deliberations, pleasing relatives of the slain San Jose man and community members who say law enforcement officials are rarely held accountable for their actions.

``Victoria!'' shouted one of Cardenas' relatives as the family gathered to celebrate on the courthouse steps.

His loved ones joined hands and gave tearful thanks to Jesus Christ.

``Justice has been served in Santa Clara County today,'' said Raul Cardenas, Rodolfo Cardenas' brother. ``At least now they can see you better be careful when you pull the trigger.''

The 33-year-old Walker, who was not in court Wednesday, could be arraigned within a week. To hand up its indictment on voluntary manslaughter, the grand jury had to conclude that Walker did not have a reasonable belief he was in danger. If convicted, he could face up to 11 years in prison.

The other option before the grand jury was a second-degree murder indictment, which could carry a penalty of 15 years to life in prison.

While it is the first time a state agent has been indicted, it marks the second time in county history that a law enforcement agent has been charged for shooting someone.

In 1972, San Jose police officer Rocklin Woolley was charged after he shot an unarmed man who was running away from him. A jury acquitted Woolley.

Walker's lawyer said the agent is preparing for the trial.

Walker, who has been on desk duty since the shooting and will be placed on administrative leave, took the news ``surprisingly well,'' criminal defense attorney Todd C. Simonson said. ``He's obviously disappointed, but he realizes this is the first round in a long battle.''

Walker joined the state Bureau of Narcotic Enforcement less than two years ago after serving 11 years on the Watsonville police force. His record appears unblemished except for being named along with three fellow officers in a 2002 unreasonable-force claim filed by a Fresno woman. Walker and the other officers were vindicated by a jury last year.

During the grand-jury hearing, Deputy District Attorney Lane Liroff, whose job it was to present evidence to the jury, held nothing back when it came to highlighting a series of blunders and fatal missteps that led to Cardenas' death.

In the confusing, adrenaline-charged minutes before the fatal shooting of a man state agents mistakenly thought was a wanted felon, agents lost contact with local police. They were baffled by unfamiliar streets and alleys in downtown San Jose. They only got a quick glimpse of a photograph of the man they were seeking.

They chased Cardenas, who they thought was their suspect, at high speeds through downtown streets until Walker cornered him in an alley near the intersection of Fourth and St. James streets.

Walker said he thought Cardenas had a gun. He did not. Walker shot the 43-year-old father of five in the back as he was running away but adamantly defends his action as self-defense.

``I fired just as soon as I perceived an imminent threat,'' Walker said during the hearing.

But Liroff, during his closing statement, said: ``Every step demanding sober caution . . . was missed.''

Outside the courthouse, Cardenas' relatives and supporters greeted Liroff with cheers.

``What we wanted to do . . . was to have a fair and open hearing that allowed the truth to get out,'' Liroff told the crowd. Liroff will see the case through trial, a job he said he is not looking forward to: ``I worked with law enforcement in the county for 25 years. I felt sad to see this pass.''

Community outrage about the shooting led authorities to seek a public grand-jury investigation into the case. Such proceedings are generally held in secret, but this is the third such public inquiry. The most recent was following last summer's fatal shooting by San Jose police of a woman confronted in her kitchen with a vegetable peeler.

But some question the wisdom of the public tribunal, saying it is the wrong forum to decide the fate of a law enforcement agent.

``If there is concern about Department of Justice policies and procedures, we think that there are more appropriate forums to address those than a one-sided, public grand-jury hearing in which an officer, who is performing his duties,'' has his future on the line, said Hallye Jordan, Department of Justice spokeswoman.

``This is the first time in this department's history that we've had an agent charged with a killing in the line of duty,'' Jordan said. ``It is unprecedented and warrants a full and careful review of our policies.''

Walker's attorney said jurors were influenced by the emotional tug of Cardenas' family.

``The public factor cannot be overemphasized,'' Simonson said. ``There were grieving family members with black shirts in front of the jury. That doesn't happen in grand juries.''

Despite the criticisms, Assistant District Attorney Karyn Sinunu defended the open process. ``These decisions that are made by the grand jury, these aren't made by feelings, these are made by facts,'' she said Wednesday. ``Was the shooting justified? That's what they look at.''

Criminal grand juries sit for a roughly two-month period. This particular panel of 18 women and men has already heard two other officer-involved shootings in which they did not issue indictments, and it will hear another one Monday, Sinunu said.

At least 12 of the jurors must vote for an indictment. Judge Thomas Hansen admonished the jurors not to discuss the case until the indictment is made public, which will occur when Walker is arraigned.

Since 1990, the district attorney's office has prosecuted 159 law enforcement personnel for everything from petty theft to child molestation and now, manslaughter.

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