Bakersfield police have submitted documents to the Kings County District Attorney's Office requesting a felony domestic abuse charge be filed against BPD Assistant Chief Evan Demestihas, who was arrested last week.
The department has recommended Demestihas be charged with one count of corporal injury on a spouse, according to Sgt. Nathan McCauley. The charge can be a misdemeanor or felony based on evidence but the BPD has recommended felony-level prosecution.
Demestihas was arrested Sept. 4 after a woman was found with visible injuries in the parking lot of the VIP Lounge just after midnight. Demestihas, who is one of two assistant chiefs for the BPD, surrendered himself to authorities at the Taft city jail later that day after being ordered to do so by the BPD. He bonded out of jail before the end of the day.
The recommendation for charges was sent to the Kings County district attorney because the Kern County District Attorney's Office had advised it has a conflict of interest, McCauley said.
"In general, there's relationships that are formed with the higher-ups at the BPD. (Demestihas) has been there a long time and we don't even want it to appear there's a conflict of interest," said Joseph Kinzel, a deputy district attorney, in explaining the local DA's position.
That's in contrast to Bakersfield Police Chief Lyle Martin's decision to allow the department to investigate one of its own.
"There is no conflict of interest whatsoever," Martin previously said.
Demestihas began his career with the BPD in 2001. He was promoted to assistant police chief in January 2017 after working as a lieutenant in charge of internal affairs.
Who should investigate?
When officers have been accused of crimes in the past, McCauley said, the department has done both — investigated its own or asked other agencies to do so — depending on the situation.
Every effort is made to ensure there's no personal conflict of interest before any investigator is assigned to look into an incident involving another officer or staff member, he said. And that was true for the Demestihas investigation.
"Chief Martin has stated numerous times how important it is for our department to maintain accountability for our actions," McCauley said. "This investigation is no exception and will be handled in a thorough, complete and professional manner."
The most recent example of an investigation by an outside agency, McCauley said, was the investigation into former detectives Patrick Mara and Damacio Diaz.
The U.S. Attorney's Office, the Drug Enforcement Administration, the FBI and the IRS participated in that investigation which uncovered the two men used their positions as police officers to steal meth from drug dealers and sell it through a third party for personal gain.
McCauley said the department also requested that the FBI review the 2017 case in which BPD officers shot and killed Francisco Serna, a 73-year-old man with dementia who was holding a crucifix, which officers mistook for a gun.
There is no rule requiring the department to outsource investigations of its own officers or staff, McCauley said.
When the department has investigated its own officers or staff in the past, he said, many of those cases resulted in arrests, prosecutions and convictions.
In the hands of the chief
The BPD's approach appears to be in line with other police departments.
Visalia Police Department spokesman Gary Williams said their police chief evaluates each case and determines whether or not it would be appropriate for the department to investigate. If the police chief isn't comfortable investigating it, the district attorney's office or another agency would be contacted to handle the case, Williams said.
Likewise, in Santa Barbara, the police department does not have a specific policy in place to deal with arrests of its own employees, said Santa Barbara Police Department spokesman Anthony Wagner. He said many factors go into whether or not an outside agency will investigate a case, but it's ultimately decided by the police chief.
However, several legal experts who were asked about the BPD's situation with Demestihas felt there was a high potential for competing loyalties to be at play in the investigation.
"If you’re talking about an investigation of a fairly high-ranking official in a police department, it is better if you have the investigation done by people who are outside of the department," said Los Angeles-based attorney Richard Drooyan, a former U.S. attorney in the Los Angeles office who now works in private practice.
Drooyan said in general, it is better to have an independent investigation conducted to "avoid any possible criticism regarding the quality or the credibility of the investigation."
"If there are relationships, people could question the conclusions or credibility of the investigation based upon those relationships," Drooyan said.
Laurie Levenson, a law professor at Loyola Law School Los Angeles, agreed there's a high likelihood of a conflict of interest in the BPD's case. But what really matters, she said, is public sentiment and whether it has "full faith" in the department to investigate the matter in an unbiased manner.