South Side man suing city over his 2012 robbery arrest
Police union lawyer contends normal procedures followed
July 19, 2014 11:05 PM
Robert Swope of the South Side Slopes is suing the city by “trying to illustrate a pattern of reckless behavior and a pattern of misconduct in the whole department that led to their failure to do their jobs.” The suit stems from his arrest for armed robbery.
By Liz Navratil and Rich Lord / Pittsburgh Post-Gazette
Awakened before 7 a.m. by the knock of a U.S. marshal and told he was under arrest, Robert Swope's first thought was that he might have made some mistake in his work as a real estate agent and home renovator.
But Mr. Swope, now 34, soon learned that he was wanted for two armed robberies of a pizza franchise not far from his South Side Slopes home. That arrest on July 19, 2012, prompted by the Pittsburgh Bureau of Police robbery squad, resulted for Mr. Swope in two nights of incarceration, a month in the court system, and a two-year search for answers culminating in his filing of a lawsuit against the city on Monday.
"I'm trying to illustrate a pattern of reckless behavior and a pattern of misconduct in the whole department that led to their failure to do their jobs," Mr. Swope said in an interview last week, days after he accused the city and two detectives of false arrest, unlawful search and seizure, excessive bail and malicious prosecution.
But an attorney for the Pittsburgh police union said the case to him seemed to follow normal procedure. A man was wanted on a warrant. He was arrested and taken to jail.
"If the victim of the crime has identified somebody, that's probable cause," attorney Bryan Campbell said. "Once he's arrested, he's got to be taken down [to jail]. He's got to be arraigned. There's a bond set. That's set in motion, and it seems to me nothing unusual happened here."
Acting police Chief Regina McDonald did not respond to requests for comment. City solicitor Lourdes Sanchez-Ridge said she hadn't previously heard of the arrest.
"I can't comment except that we're going to investigate and we're going to see if there's any merit to the complaint," Ms. Sanchez-Ridge said.
Mr. Swope's lawsuit is the second in four months questioning arrests by the Pittsburgh police robbery squad, its use of eyewitness identification as the linchpin for arrests and its consideration of alibis. A third similar suit is expected to be filed in the coming weeks.
Deandre Brown, 27, of Lincoln-Lemington sued the city in April. He was arrested last year for a robbery that occurred in Homewood while he was at a work meeting in Oakland.
Another man, Dale Shaffer, 25, spent nearly a year in jail before he was acquitted following 15 minutes of jury deliberation in the armed robbery of a PNC Bank in a case also based on eyewitness identification. Mr. Shaffer is expected to file a suit in the coming weeks, according to his attorney, Massimo Terzigni.
Mr. Swope, who filed the latest case, said he occasionally patronized the Domino’s Pizza in the 500 block of East Carson Street.
On March 30, 2012, a counter employee there named Chad Stewart reported that he was robbed by a man with "a black handgun."
The robber told him to open the register and took around $100, according to an affidavit by robbery squad Detective John Johnson. Mr. Stewart said the same man had robbed the same store five days earlier, according to the affidavit.
More than three months later, Detective Johnson showed Mr. Stewart a photo array of eight men "who shared similar characteristics," according to the affidavit. Mr. Stewart fingered Mr. Swope as the robber.
Mr. Swope did not know what drove police to include his photo in the arrays, and police records don't provide insight.
James Sheets, the attorney later hired to defend Mr. Swope, said Detective Johnson's two-paragraph affidavit was one of the thinnest presentations of evidence he had seen in 15 years as a defense lawyer.
"Eyewitness identifications, particularly using the photo array as it's used in the state of Pennsylvania and in the city of Pittsburgh, are not a particularly good way to identify a perpetrator," said Mr. Sheets.
The passage of more than three months between the incident and the identification, during which Mr. Swope may well have patronized the Domino’s location, made the evidence become even less convincing, he said.
But Mr. Campbell, the attorney for the police union, argued that an eyewitness identification constitutes probable cause.
If a victim identifies someone as the robber, "What do you think a robbery detective has to do at that point other than to get an arrest warrant for the person?" Mr. Campbell said. "What's the officer to do now -- is he supposed to go out and be the defense attorney for the person accused?"
Pittsburgh police trying to nail down a suspect's identity typically show witnesses a single sheet with multiple photos, including the suspect and similar-looking people who are not related to the incident.
That method, while still widely used, has been discredited by multiple studies, said David Harris, a University of Pittsburgh law professor and author of the 2012 book "Failed Evidence: Why Law Enforcement Resists Science."
Showed a group of pictures simultaneously, most people begin to compare them to each other, compromising their memory, said Mr. Harris. It's better to show the witness a series of photos, one at a time, prompting them to compare each, individually, to their recollection of the suspect.
More and more cities are starting to change to sequential lineups, said Mr. Harris. What's at stake? He noted that a study of 300-plus DNA-based exonerations found that 72 percent of the discredited prosecutions were built on faulty identifications.
Because Mr. Swope was accused of armed robbery, and thus presumed dangerous, Pittsburgh police enlisted the U.S. Marshals, who made the arrest. They transported him to police headquarters.
There Mr. Swope was questioned by two detectives -- one male, one female -- whose names he said he does not know, and accused of two armed robberies of a Domino’s Pizza shop on the South Side, plus other hold-ups.
"They started throwing all of these instances at me from all over the county," Mr. Swope told the Post-Gazette Wednesday. He said they told him: " 'If you want to start confessing to what you did, we could bundle them together, and you won't serve as much time.' "
Mr. Harris said that sounds like an interrogation method known as the Reid Technique, widely taught in U.S. law enforcement, in which officers portray their case as airtight while giving the subject a "way out."
"They told me they were going to search my property," Mr. Swope recounted. "I said, look, I've got [two] rescue dogs. ... I said, just leave them alone. They said, 'We're going to seize them and euthanize them if you don't confess.' "
That, he said, was when he came closest to buckling. "It goes through your mind that you may just want to confess to save your dogs," he said. Police searched his house without harming the dogs, seizing, among other things, a "fake Civil War gun," according to Mr. Swope's lawsuit.
Mr. Swope said he offered during his interview with police to check his records and get back to them with his alibi information.
"After four months pass, you have no idea where you were four months ago on a specific date and time," he said, but he was confident he could provide documents.
The interrogators weren't interested, Mr. Swope said.
Mr. Campbell said he could not talk about the specifics of the questioning because he had not yet had a chance to speak with the detectives.
The attorney said he felt an understanding of police procedure will be crucial to the case. Because a warrant existed for Mr. Swope, police would not have been permitted to let him leave headquarters to retrieve that information without first being arraigned and having bail set, Mr. Campbell said.
"You can't let somebody who is under arrest say, 'I'll go home and I'll come back,' " he said.
'I'd still be in jail'
Mr. Swope was jailed for three days and two nights, according to his complaint, on $75,000 straight bond.
"I fully believe that had I given a false confession ... I'd still be in jail," Mr. Swope said.
His first court date came about a week after his arrest and was postponed because a witness did not come to the hearing, according to court records.
Mr. Swope said that shortly thereafter, his attorney arranged a meeting with Detective Johnson and Detective Leonard Duncan, who charged him in one of the robbery cases, and they presented the pair with alibi evidence.
Another hearing was set for Aug. 16, 2012, when the officers each asked that the charges be withdrawn, according to court records.
Mr. Campbell described that as part of the normal procedure, noting that once a defendant has left jail he can typically work with an attorney and then present evidence to a prosecutor, who will then make a determination as to whether the alibi is legitimate.
"Ultimately, it looks to me like he and his lawyer got together, got information and it appears then the charges were withdrawn," Mr. Campbell said.
Mr. Swope's complaint indicated that the incident cost him $5,350, plus lost business, emotional damages and ongoing anxiety.
No one else has been arrested for the Domino’s robberies, a search of court records indicates.
A newly emerging pattern?
One of the other cases involving Pittsburgh robbery detectives started in September, when Mr. Brown, formerly a security guard for a Carnegie Library branch, was arrested after a worker at a Homewood bakery took video of his car leaving the shop and told police that he resembled the man who had robbed them the day before.
Mr. Brown's attorney said during a preliminary hearing that month that his client had an alibi, according to a transcript of the proceeding. But he remained jailed for nearly a month and was released when a judge learned of the alibi information and allowed his release to home electronic monitoring.
The Allegheny County district attorney's office withdrew the charges after Mr. Brown's attorneys showed to officials video from the Oakland library where Mr. Brown attended a work meeting during the time of the robbery and a meeting sign-in sheet.
A few months later, Mr. Shaffer was acquitted of armed robbery of the PNC Bank.
The prosecution in that case relied solely on the identification of the suspect by three bank employees who testified that they saw the suspect from a distance, "out of the corner of their eye" or for only a second or two.
Mr. Terzigni, who represents both Mr. Brown and Mr. Shaffer, said he's noticed several cases in recent months in which police have relied on eyewitness identifications and very little other evidence.
And often, he said, these clients find that police are reluctant to listen to their potential alibi information.
"That's the pattern that we're talking about here," said Mr. Harris. "We get one piece of evidence, and that's the identification, and that's the end. The investigation seems to stop."
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