Pubdate: Thu, 23 Jan 2003 Source: Denver Post (CO) Copyright: 2003 The Denver Post Corp Contact: http://www.denverpost.com/ Details: http://www.mapinc.org/media/122 Author: Amy Herdy FINDINGS COMPLICATE MENA CASE Sworn Testimony Raises Questions Over 1999 Denver Police Shooting Thursday, January 23, 2003 - Sworn statements about the death of Ismael Mena raise troubling new questions about the much-criticized police shooting, including findings that gunshot residue found on Mena's hand did not come from a gun police said he fired at them. Mena, a 45-year-old Mexican immigrant, was shot by a police SWAT team on Sept. 29, 1999, after team members executing a drug search warrant entered the wrong house. Police said they shot and killed an armed Mena after he refused to drop his gun and then fired at them. The shooting stirred outrage in Denver. Some residents formed the Justice for Mena Committee to press for a fuller explanation of what happened, and SWAT team members sued others who publicly questioned the official findings in the case. In February 2000, Jefferson County District Attorney Dave Thomas, named as a special prosecutor to investigate the case, cleared the SWAT officers, calling the shooting justifiable. But never-before-reported depositions taken in connection with the lawsuit filed by SWAT team members and other reports reveal new facts about the case, including: According to a laboratory report, gunshot residue found on Mena's hand did not match the .22-caliber Burgo revolver police say he fired. Rather, one Denver homicide lieutenant said in a sworn statement, the residue was consistent with a submachine gun used by a SWAT team member to shoot Mena. In an interview, Thomas said he was unaware of the lab test results when he released his findings on the case. Steve Evans, an investigator working for Thomas, said in a deposition that he concluded from physical evidence at the scene that Mena's body was moved at least 18 inches immediately after the shooting. The body must have been moved by SWAT team members, he said in the deposition, which was taken after Thomas' findings were released. Thomas said last week he believes the body may have been moved when SWAT officers opened the door to enter the room. In depositions, SWAT team members all swore that they did not move the body. An autopsy report released after the shooting said two of the eight bullets that struck Mena, unlike the others, were not fired at an upward angle. In a videotaped statement given immediately after the shooting, SWAT officer Ken Overman, who fired the shots that killed Mena, said he was lying on a staircase outside Mena's bedroom during the shooting. In a deposition months later, Overman said that he stood up during the final shots. But in a separate deposition, the SWAT team leader said he stepped over a prone Overman after the shooting stopped. No fingerprints were found on the revolver police say they took from Mena's hand, nor were fingerprints found on the ammunition in the gun. Despite these revelations, Thomas said, he still believes the shooting of Mena to be justified. The officers were in fear for their lives, he said, and protected as such by Colorado law. The laboratory findings on gunshot residue, in particular, would not have changed his findings, Thomas said. "That doesn't surprise me," Thomas said. "GSR (gunshot residue), in a circumstance like this one, is a fairly meaningless piece of evidence." In close quarters, he said, it can easily be transferred from a gun that is being fired to anyone else who is near. Lab test results showed three components of gunshot residue on Mena's hand: barium, lead and antimony. Tom Netwal, a forensics expert with the Colorado Bureau of Investigation, told The Denver Post that the gun police say Mena fired at them typically does not deposit gunshot residue and is "incapable of depositing" the kind of residue found on Mena's hand. The absence of fingerprints on the gun, Netwal said, does not surprise him, because someone who handles an object does not always leave clean prints on it. Denver police officials say the shooting was justified. Chief Gerry Whitman, who assumed that title more than a year after the shooting, referred a reporter's questions about the case to Thomas. An internal affairs investigation cleared the SWAT team members while finding that Joseph Bini, the police officer who prepared the search warrant that led the SWAT team to the wrong house, falsified information in the warrant, records show. Denver homicide Lt. Jon Priest, asked by Chief Whitman to review the Mena case, completed a review that cleared the department of any wrongdoing, although Priest said in a later deposition that he did not examine physical evidence or conduct any additional interviews for his report. Immediately after the shooting, some of the SWAT officers gave videotaped statements, while others wrote short accounts of it. The officers' story was that shortly before 2 p.m. that day, the first two SWAT team members up the stairs of Mena's home at 3738 High St. found a roommate, Antonio Hernandez, and held Hernandez in his bedroom until the shooting stopped. After SWAT members kicked open the door to Mena's bedroom, they saw him standing in the doorway, partially obscured by the door. SWAT Capt. Vince DiManna, who had come up the stairs, backed down them to allow Overman to assume a prone position with his MP-5 submachine gun. After repeatedly yelling at Mena to drop the gun, they say, SWAT members Overman and Mark Haney both fired, with Haney's two shots hitting the wall in Mena's bedroom and seven or eights shots from Overman's gun striking Mena. In his deposition dated May 14, 2001, Overman is asked whether Mena appeared to be crippled after the first round of shots. "Well, I'd say he was definitely injured," Overman said. "He probably had sustained enough injuries to be fatal, but he just wouldn't stop moving. I mean, he wouldn't stop his aggressive actions toward us." Overman did not return phone calls seeking comment. Three rounds were fired into the hallway outside Mena's bedroom from the eight-shot Burgo revolver SWAT officers say they found in Mena's hand. The officers said that after the shooting, Mena was obviously dead, and they did not move him. At the time of the raid, District 2 officers were told to steer clear of the area. As a result, no non-SWAT witness interviewed recalled hearing shots, except for Mena's roommate, Hernandez. However, former Colorado Rockies second baseman Mike Lansing, riding with the SWAT team at the time of the shooting, stayed in a nearby police vehicle while the shooting occurred. Lansing's presence was not revealed and he was not interviewed until months after the shooting. He could recall few details of it, he said. In his own deposition in the SWAT team's lawsuit, private investigator James Kearney, hired by an attorney representing Ismael Mena's family, disputed the officers' version of events. Kearney, a retired FBI agent, appeared on the Peter Boyles radio show on KHOW-630 AM on January 20, 2000, and publicly accused Denver police of murdering Mena and covering it up. Months later, on April 18, the SWAT team sued Kearney, Boyles and Jacor Broadcasting for libel. It was during that lawsuit that all the SWAT team members, as well as Thomas and his investigator Evans, were deposed. The suit was later settled, with Jacor and Boyles agreeing to contribute $55,000 to a police union fund. Kearney refused to be a part of that settlement, and the suit against him was dropped. During his investigation for the family, Kearney said he recovered two spent slugs that were found by Mena's landlord after police had cleared the scene. Kearney said in the deposition that Mena's landlord told him that the slugs had been embedded in the carpet padding of Mena's bedroom. SWAT officers said in depositions that they could not explain why slugs fired directly into the room were found embedded in the carpet. Some also said they were surprised that investigators missed the slugs when examining the crime scene. Kearney would later turn the slugs over to Jefferson County DA investigator Evans, and would give photographs of the carpet padding showing the bullet holes, as well as the underlying linoleum showing bullet marks, to the FBI. An investigation by the FBI into whether Mena's civil rights were violated is ongoing. Hernandez, taken into custody in the bedroom next to Mena's, told Kearney that minutes after the initial burst of shots, he heard several more shots in the vicinity of Mena's bedroom, Kearney said in the deposition. Kearney said Hernandez told him he did not give this information to police because he was afraid of retaliation. Of the eight bullets that hit Mena, three struck his right arm, the arm that allegedly held the gun, with one shot penetrating all the way through, autopsy records show. Of the two shots that struck his chest, one penetrated completely through, with no lateral or vertical angle, and the second, which showed a slight lateral angle, was found near his spinal cord. In his deposition, Priest said that while the gunshot residue found by the lab could not have come from the gun found on Mena, it probably came from the slugs fired by the MP-5 submachine gun. Firing the submachine gun would have discharged a gas cloud of gunshot residue, Priest said, that probably floated through the room and settled on Mena. "I would imagine if you did a test over his entire body, you would have found it as well," Priest said. Lab-test records show that there was no gunshot residue found on Mena's face or clothing. To Jefferson County DA Thomas, this adds credence to the SWAT team's story. The fact that there was no residue found on Mena's clothing shows that he was not shot point-blank in the chest, Thomas said. "All the evidence in this case suggests it happened the way the SWAT team described it," he said. Still, he said, "Like any case, it's still open. If new evidence was presented to me that I thought warranted a re-examination, I would do that. That one piece of gunshot residue does not warrant that, in my opinion." For LeRoy Lemos, who spearheaded the Justice For Mena committee, the depositions offer hope that the investigation into Mena's death will be reopened. "From the very beginning of this case, officials were never, ever forthcoming with the truth," Lemos said. "I've always maintained that one day Mena will be able to rest in peace." Mena's family, who settled with the city of Denver for $400,000, could not be reached for comment. Lemos says he is angry at how Mena was portrayed by city officials: as a desperate man who was wanted for murder in Mexico when in fact he had been cleared there in a shooting in self-defense. Mena was poor and therefore easily dismissed, Lemos said. Yet police reports show there were no drugs found in Mena's house or in his body, Lemos said. Intelligence officers opened a so-called "spy file" on the committee, saying its "ringleader," Lemos, was "violent." The head of the SWAT team at the time of Mena's shooting, DiManna, later became head of the intelligence unit that monitored the Mena committee and other activists. An entry in the spy file described fliers distributed by the Justice For Mena committee as "very derogatory in nature." It also noted that "the group later accused the Denver Police Department of violating their First Amendment Rights and indicated they were going to file a civil law suit. An article in The Denver Post indicated the ACLU might look in to the matter!" (SIDEBAR) TIMELINE 1999 Sept. 23: Denver police obtain search warrant for 3738 High St., home of Ismael Mena. Sept. 29: SWAT officers conduct no-knock drug raid, fatally shooting Mena. Police realize they executed the warrant at the wrong house. Oct. 1: Internal Affairs investigation is launched. Nov. 30: Media outlets begin reporting that police raided the wrong house. Dec. 2: Jefferson County District Attorney Dave Thomas is appointed special prosecutor to investigate the case. 2000 January: The Justice for Mena Committee is formed. It contends that after police realized they raided the wrong house, they tried to cover it up. Jan. 7: James Kearney, a private investigator hired by the Mena family, says officers shot at Mena from behind a door, stood over him and fired additional shots into his body, planted a .22 in Mena's hand after discharging it, and placed gunshot residue on Mena's hands. Jan. 9: Kearney provides spent slugs found in the carpet of Mena's bedroom to investigators. He also provides photographs of the carpet padding showing bullet holes, as well as underlying linoleum showing bullet marks, to the FBI. Jan. 20: Kearney appears on Peter Boyles' talk show on radio station KHOW-630 AM and repeats his allegations against the SWAT officers. Jan. 20: SWAT officers meet with police union leaders and decide to file a libel lawsuit against Kearney and Boyles. February: Officer Joe Bini, who prepared the search warrant with the incorrect address, is suspended without pay. He returns in December 2000. Feb. 4: Jefferson County District Attorney Dave Thomas clears SWAT officers of wrongdoing and disputes Kearney's version of events. He announces decision to charge Bini with perjury. Feb. 10: Entries are made in a Denver police "spy file" on the Justice For Mena Committee, identifying committee head LeRoy Lemos as the "ring leader" and describing him as violent. March 23: The city agrees to pay the Mena family $400,000 to avoid litigation. April 18: SWAT team files libel suit against Boyles, Jacor Broadcasting and Kearney. Aug. 4: Ari Zavaras and Gerry Whitman are sworn in as the city's new safety manager and police chief, respectively. Aug. 20: SWAT Capt. Vince DiManna transfers to head of Denver's Intelligence Unit, which maintains the spy files. 2001 Feb. 12: Homicide Lt. Jon Priest is instructed to review the case. He examines the file and crime scene photos, but does not conduct any new interviews and does not examine any physical evidence. His report finds Kearney's allegations unfounded. October: Boyles and Jacor settle lawsuit filed by police, agreeing to pay $55,000 to a Denver police union fund. Kearney was not part of the settlement. 2002 Aug. 21: DiManna retires. September: Bini transfers to the chief's office. - --- MAP posted-by: Beth