Without that evidence in his trial, Baker was found guilty of battery on a law enforcement officer, a felony. Unless he can convince a judge of his probable innocence, he faces up to six years in prison.
"I'm an innocent man," Baker says. "It's all on tape."
The case begins somewhere around 10 p.m. on Friday, April 18, 2003. Baker was standing near the corner of U.S. 441 and Hollywood Boulevard, holding a six-pack of beer and a bag of Subway sandwiches. He was chatting with two friends, Dennis Shelter and Angel Castro, both of them homeless men known to the Hollywood police because of prior arrests. Baker fit in with the pair. Despite living with his mother, he could pass as a vagrant. "I'm a construction worker," he says. "I'm kinda dirty-looking."
Police dispatched Officers Francis Hoeflinger and John Graham to the area after receiving a call that a drunken man was walking in traffic, weaving between cars. The officers arrested Shelter and Castro for having open containers. Then they collared Baker after discovering that there was a warrant for his arrest, for not having paid a $25 fine for a previous open-container violation. Hoeflinger and Graham brought all three men to the Hollywood Detention Center at 3250 Hollywood Blvd.
Here's where the series of events gets messy.
The officers claim that Baker, a fragile-looking man who chain-smokes Marlboros, was combative, even before he got to the detention center. He threatened to "slap the shit outta" the "fucking pieces of shit" officers, according to Hoeflinger's report. Then, while everyone was inside the detention center's reception area, an argument broke out between Shelter and Castro. Hoeflinger said he charged in to break it up. That's when Baker reportedly yelled, "Fuck off, asshole!" and punched Hoeflinger in the back. Graham and Hoeflinger then took Baker down, one officer kneeing him in the face. Once Baker was facedown, Hoeflinger punched him repeatedly in the small of his back to indicate "where I wanted the arrestee to put his arm," the officer wrote in his report.
The officers then dragged Baker's limp body to a holding cell and filed a charge for battery on a law enforcement officer. They provided what appeared to be evidence of the assault: a grainy, soundless, black-and-white surveillance video recorded on DVD that, playing at high speed, appeared to show Baker grabbing the officer's hand and pushing him.
With a history of drug and alcohol abuse and a long rap sheet, including a 1974 conviction for robbery and assault for which he did five years in a state prison, Baker faces dim prospects in the criminal justice system. But there was a believability to his claims of innocence that persuaded family members he was telling the truth. Every convict claims he's an innocent man, of course. But Baker spoke so forcefully, family members say, that he got his stepfather, John McNamara, on his bandwagon.
Toward the end of the trial, McNamara found proof that the evidence against Baker was tainted. Citing state public records law, McNamara requested a copy of the detention center surveillance tape. The tape he received was not only recorded at a slower speed but included whole scenes that were missing from the version provided to the Broward State Attorney's Office. "Hollywood police edited the tape," McNamara says. "No doubt about it."
Baker leans toward the laptop computer and plays the DVD McNamara obtained. It begins at 10:36 p.m. Officers Hoeflinger and Graham escort the three detainees to the far side of the room. Hoeflinger takes the handcuffs off Baker as Graham unshackles the other men. If Hoeflinger is concerned about Baker's bellicosity, he doesn't show it. The officer simply walks slowly away, his back to the detainee. At that point, Hoeflinger and Graham converse privately in the corner. Graham then walks over to Shelter and Castro. Most of the action occurs off-screen, but for some unknown reason, Graham can be seen throwing a left-handed punch at one of the men. Baker, watching this, appears to say something. Unprovoked, Hoeflinger sucker-punches Baker with a left and follows with a strong, right-handed uppercut, sending him to the ground. "He nearly knocked me out," Baker recalls.
Hoeflinger then puts his left index finger in Baker's face. Baker grabs it. The officer pulls him up. Having been punched twice already, Baker becomes defensive. He pushes Hoeflinger to the ground. Graham circles around, his fists clenched, and moves in to strike.
Just then, at the exact second the viewer would expect Graham to punch Baker, the video appears to leap back in time. Baker is suddenly five steps away from Graham. Then, even more suddenly, the two officers are forcibly subduing Baker. Entire segments of the scene are clearly missing.
The video continues. The officers throw Baker to the ground and strike him repeatedly. In his report, Hoeflinger claims that Baker resisted being handcuffed. The video disputes that claim. For about 30 seconds, Baker's body is lifeless. Finally, Hoeflinger drags him across the floor and into another room. The scene ends at 10:38 p.m. Evidence photographs show Baker bloodied and bruised, with lacerations to the face, his nose gashed and bloody.
At trial, Assistant State Attorney Brad Edwards knew the tape was problematic but didn't believe it was edited. He sold the jury on Hollywood Police Det. Robert Knapp's assertion that a video "duplex" -- when two surveillance cameras record to a single video -- can cause a tape to appear edited. "It still didn't make much sense to me," Edwards admits today. "But I told Knapp, 'If that's your explanation, I'll put it in front of a jury. '"
Baker's attorney, Assistant Public Defender Madeleine Torres, failed to call a video expert to challenge Knapp's testimony. A jury convicted Baker of battery on a law enforcement officer on April 26. At sentencing, he personally appealed to Judge Michael Gates, claiming that the video was edited and that his attorney failed to challenge the evidence. Gates issued a continuance and appointed criminal defense attorney Scott Hecker to review Baker's claims. Hecker hired David Bawarsky, president of a video and multimedia company in Fort Lauderdale, to review the tapes.
When Bawarsky went to the Hollywood Police Department with a court order to obtain a fresh copy of the original surveillance video, Knapp presented him with a VHS tape including scenes from four different dates from 2002 and 2003. "It was a clean, fresh tape with different dates," Bawarsky says. "That was a red flag." Generally, surveillance tapes include scenes from over a 72-hour period, Bawarsky says. A tape with scenes from two different years and four different days is suspect.
In a 17-page report submitted to the court on November 19, Bawarsky said that all of the surveillance videos had been edited and were missing frames. Some time gaps are as long as nine seconds, he reported. Bawarsky also compared the events on the tape to those reported by Hoeflinger and Graham in their reports. "Most of the time," he wrote, "the officers' statements don't correlate to the actions on the video."
Police may have been trying to cover up evidence of brutality, Bawarsky suspects. "You can see Donald lying with his face down, his legs spread out, and he doesn't move," he says. "But the officer continues to beat him, move him over, rough him up, and then drag him across the floor into an area by himself. One has to wonder about all that and all the different versions of the tape we have."
The Hollywood Police Department has a reputation for brutality (see "Strong Arm of the Law," September 30). Since 1996, 26 plaintiffs have notified the department of intent to sue for excessive use of force. In 1998, 21-year-old Dwight Edman received a $750,000 jury verdict after Hollywood police framed him in a drug bust. A wrongful-death lawsuit against Hollywood police is currently pending in federal court.
Capt. Tony Rode, public information officer for the Police Department, was not aware of claims that the videotape was edited. Any force used by Hoeflinger and Graham was appropriate, Rode assures, after examining the tape that police presented in court. "Donald Baker is half a whack," he adds. "He's been arrested 30, 40 times. He probably thinks he has a good chance of winning a lawsuit now."
Baker walks anxiously around his living room, a piping cup of coffee in his hand. He could use a beer, but the terms of his house arrest prevent him from drinking alcohol. On December 28, Baker will appear before Judge Michael Gates for sentencing. He's pinned his hopes on a motion filed last week asking for a new trial given the appearance that Hollywood police doctored evidence.
"The evidence was tainted," Baker says. "These videos are like DNA evidence. They don't lie."