SLAIN MAN HAD KNIFE IN POCKET

Detail Could Explain Why State Agent Fired, but Critics Question Why
Weapon Was on Body

The San Jose man shot in the back and killed by a state drug agent in
February had a knife in his pocket that could have been mistaken for a
gun -- a detail that could explain why the agent thought he was acting
in self-defense.

But critics of the evidence presented before a criminal grand jury
Wednesday questioned why the man would have put the four-inch folding
knife back in his pocket after being mortally wounded rather than
throw it away.

In an open hearing, Santa Clara County grand jurors are investigating
the Feb. 17 death of Rodolfo Cardenas, 43, an unemployed construction
worker who was mistaken for a fugitive parolee and chased through the
streets of downtown San Jose by state agents.

The jury must decide whether Michael Walker, the California Bureau of
Narcotic Enforcement agent who shot Cardenas, committed a crime.

Several law enforcement witnesses have testified Walker told them he
thought Cardenas had a gun, though police found no gun at the scene or
on Cardenas. A San Jose police officer who patted down Cardenas right
after he was shot also did not find the knife.

But later, a crime scene investigator going through the slain man's
bloody clothes found a folding four-inch knife with a black handle in
his left front pants pocket.

Resemblance to Gun

On Wednesday, Santa Clara County Deputy District Attorney Lane Liroff
asked homicide crime scene investigator Jim McBrayer what the knife
might resemble.

"Look like a gun?" Liroff offered.

"Given the right circumstances, it might," McBrayer
replied.

Liroff also asked San Jose police officers whether Walker "planted"
anything on Cardenas in their presence. They said he had not.

John Stein, the attorney who is representing Cardenas' family in their
civil suit against the state, criticized Liroff.

"He's giving the grand jury an excuse not to indict," Stein said
after the hearing. Stein added that it did not make sense that
Cardenas would have put the knife back into his pocket after being
shot.

Stein also said the district attorney's office should be taking a
position on whether Walker is guilty of a crime or not.

Liroff had no comment, but Assistant District Attorney Karyn Sinunu
said it was the prosecutor's job to present the grand jurors with all
the evidence in the case and advise them of the law. She said county
prosecutors do not take a position in most grand jury investigations
of officer-involved shootings.

In order to indict Walker for manslaughter, the jury must find he did
not have a reasonable belief that he was in danger. To indict for
murder, they must also find he did not have a good-faith belief of
such danger.

Man Fled From Agents

On Feb. 17, state agents were looking for 37-year-old David Gonzales,
a fugitive wanted for a parole violation on a drug offense.

Cardenas, who sped away in a van from a North 14th Street garage where
Gonzales was supposed to be, led agents on a high-speed chase in
downtown San Jose.

He eventually ditched his van near North Fourth and St. James streets
and ran down an alley adjacent to the Shires Memorial Center. He
jumped a chain-link fence and ran around the corner of the building.

Walker apparently fired his gun through the fence as he stood near the
corner of the building. He reportedly told one officer Cardenas was
reaching behind his back with his right hand. That is apparently when
Walker fired.

On Wednesday, Cardenas' estranged wife, Jeanette, testified that her
husband was left-handed.

An autopsy showed Cardenas was high on methamphetamine at the time he
died and a witness has testified that he had bought drugs from the
slain man.

Walker's claim that he acted in self-defense was complicated by
testimony Tuesday by Cesar Sanchez, a Bureau of Narcotic Enforcement
agent who arrived at the scene about the time Walker fired what
authorities say was a second round of bullets at Cardenas.

Sanchez told the jury that he took cover behind the building when
Walker fired.

"Was there a wall that provided cover for you," Liroff
asked.

"Yes, sir," Sanchez answered.

The exchange raised the question of whether Walker could have also
sought cover rather than firing at Cardenas.

Walker is scheduled to testify today.