Twenty-five Seconds

I know the title is somewhat cryptic, but since this will be largely about confusion and uncertainty, that is as it should be.

Prior to bringing in the jury, Judge Arrington dealt with motions filed yesterday. The ruling on the  mistrial request was delayed at request of the defense pending upcoming testimony.The Jury view of the house is scheduled for Monday.

The Prosecution began its case today by calling Det. Shivers’ wife, Nicole, to testify about her life with her deceased husband and about his education and experience. She had no information to offer relevant to the case, but perhaps testifying will help bring her peace of mind, and it was certain the prosecution would find some way bring emotion into the case.

The bulk of the day was made up of testimony from officers who participated in the raid or were supervisors.  First was Capt. James Dunlap, commander of the Special Investigations unit which handles Chesapeake’s drug enforcement and who was Shivers supervisor. He pretty much repeated the history Mrs. Shivers had chronicled, but did reveal under cross examination that the raid on Frederick’s home had been carried out by the Special Investigations unit and not SWAT because Frederick was not regarded as dangerous.

After his testimony, Det. Kylie Roberts testified both about the warrant and the service of that warrant which led to Det. Shiver’s death.  I will leave reporting on the Warrant for later, as I suspect more facts on that topic will come out tomorrow and proceed with the events leading up to the evening of Det. Shiver’s death.

In addition to Det. Roberts, other officers at the front door testified, including Det. Michael Barone, who wielded the battering ram, Det. Sgt. Scott Chambers who was the team leader at the site (though the planner of the raid was Roberts), Det. Jennifer Walker, who gave the most clear and precise testimony of the group, and Det. James Duncan.

Their testimony was very similar, and I do believe they factually reported the incident as they saw it, so I will summarize their testimony as a group and only specify names where there was a discrepancy or unique insight. Though I believe they reported the facts accurately, they did so from their point of view, and thus, their interpretation of the facts is inherently faulty, as self defense must be determined from Frederick’s point of view.

About an hour before the raid, Det. Roberts briefed the officers on his plan for the raid. I’m not going to play nice and call it ‘serving the warrant’ because it was, from the beginning, a raid. In fact, the van which they used to carry a portion of the team the the raid was referred to by Det. Jennifer Walker as “the Raid Van” because that’s what they used it for. The raid was divided into two teams, nine officers for the front door and seven for the detached garage. The plan was to conduct simultaneous “Knock and Announce” entries in case there was also someone in the garage.  Roberts made a point of saying that they knew Frederick owned a firearm and that there was no easily destroyed evidence in the house, so there would be no need to rush and Frederick could be given plenty of time to answer the door and for them to be certain he knew it was the police.

They arrived in the Raid Van and one unmarked and one marked car. None were parked where they could have been seen by Frederick. The two teams stealthily got into their positions. At the front door, Roberts and Barone were on the porch with Shivers three steps down at the base of the steps and six other officers lined up behind him.  A great deal was made of what they were wearing, including helmets with police printed on them. I don’t see what difference that makes since Frederick was never given the opportunity to see them.

Roberts started the knock and announce process by knocking on the glass storm door, not the wooden door itself, knocking three times and shouting “Chesapeake Police Search Warrant Open the Door.” Prosecutor Ebert had Roberts demonstrate the process and I noted that when Roberts shouts, his voice breaks (if you heard him on channel 10, you will know what I mean) even shouting, his voice is not penetrating. Even the female Det. Walker has a much louder shout. At this point a problem was becoming clear to me. The first two knock and announce cycles were knocking on the closed storm door, which got the dogs barking to cover Roberts high pitched, non-penetrating voice. Under those conditions, I seriously doubt Frederick could have heard anything other than the dogs. Roberts must have been aware of that possibility, because he then opened the storm door but was unable to reach the door to knock on it again while holding the door on the narrow porch, and knocked instead on the vinyl trim outside the door, also unlikely to be effective. Barone lowered the battering ram so he could knock on the door itself. That was likely the first effective knock.There were five knock and announce cycles altogether.

The team leader said he counted seconds and that 25 seconds elapsed between the first knock and the battering ram striking the door. With the first three cycles being ineffective and the dogs by that time going nuts it is unlikely that Frederick could have heard anything until 10 seconds or less before the ram came through the door and then only the knocking, never Robert’s voice.

Shortly after Barone’s knocks, one of Frederick’s dogs poked his head through the curtains in the window to the right of the door. Det. Walker saw the dog, but Det. Roberts interpreted the movement of the curtain as someone looking out but not opening the door. Det. Duncan saw a change in the light coming through the window to the left and interpreted that as someone looking out the window, though other officers only saw that as a shadow falling across the curtains from an undetermined distance within the house. Duncan shouted “8-ball” a code that the operation was compromised but the team leader Chambers ordered the others to disregard the code and “give him more time” though he gave the order to breach the door himself only five seconds later. Confusion had overcome judgment.

Barone then attempted to breach the door, but missed the lock and instead knocked the lower right panel, just less than 1/4 of the total area of the door into the house, with the ram following it partway into the room. Barone withdrew the ram but before he could strike a second time, he and several other officers heard a ‘soft pop’ which they were initially unsure was a gunshot. That round came out through the opening of the shattered panel and fatally wounded Det. Shivers. A few seconds later, they heard a second soft pop, which was Frederick’s accidental discharge of a second round (which made the previously unexplained hole in the wall) as he retreated toward the rear of the house.  Both Walker and Duncan saw Frederick’s bare feet and blue pajama pants running toward the door as the panel was knocked out and Duncan saw Frederick’s retreat through the broken out panel.

The police then withdrew to tend to Shivers and set up a perimeter to prevent Frederick’s escape while waiting for the SWAT team to arrive to assist. Five minutes into the wait, with Walker and others shouting “Police, come out with your hands up.” Frederick came out and was arrested.

It is tempting to look for a villain in such tragedies. If we can find and punish a victim, then we can believe we have solved the problem and it will not recur. The police have certainly pegged Frederick as their villain. Many want to find a villain in Roberts or other police on the scene. But it is not going to turn out to be all that simple.

The truth is that something like this was going to happen sooner or later. Knock and announce searches are inherently dangerous. Even if you are careful and you can make them 99% safe, but then you do hundreds of them every year, it is only a matter of time before the numbers catch up. Even the least experienced of these officers had participated in over 150 such searches. Sooner or later, someone makes a mistake and someone dies.

We don’t know what was in Frederick’s mind. The police are assuming what they think SHOULD have been in his mind, but they don’t know. If the walls in Frederick’s house were able to muffle the sound of a gunshot sufficiently that experienced police officers were unsure they had heard a gunshot, even with the storm door open and the hole in the door, then what could Frederick have heard with the doors intact and two large dogs barking furiously in the small house? The police assumed that because they could hear each other outside, he could hear them inside, but the muffling of the shots makes that unlikely.

So, where is our villain? The police officers followed the procedures they trusted and trained in, and which are practiced by police all over the country, though perhaps with more restraint in other locales.

Frederick reacted in fear and confusion, perhaps a bit more precipitously than wisely, but probably without malice.

The problem is that we have allowed these “knock and announce” searches to become routine, when they should be reserved for the very limited circumstances where they are necessary and the risk is justified.

We gave Frederick only 25 seconds to recognize the situation for what it was and get the door open for the police. But with no evidence there to be destroyed(you can’t flush an entire marijuana plant), no hostages to rescue, and no danger presented to anyone outside the house by Frederick, the search could have waited for 25 minutes or 25 hours and yielded the same results. There was simply no reason to knock down that door EVER. If he holed up in there till he starved, the search would have been just as effective and no one would have been placed in peril.