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.