The City Attorney's Officers wants lawyers representing plaintiffs in a lawsuit in which a Los Angeles police officer admitted touching a dead woman's breast while on duty to be barred from calling it a sexual assault or urging the jury to send a message to the city with their civil case verdict in the upcoming trial of the civil case.
In a separate criminal case, LAPD Officer David Rojas could face up to three years in state prison if convicted of having sexual contact with human remains without authority, according to the Los Angeles County District Attorney's Office. The four-year Los Angeles Police Department veteran -- who was assigned at the time to the Central Division in downtown Los Angeles -- was placed on leave after the allegation surfaced in November 2019. He was arrested and charged the following month.
The dead woman's mother and 18-year-old grandson, and the father of the teen, sued the city and Rojas in Los Angeles Superior Court in August 2020, alleging mishandling of human remains, privacy invasion, intentional infliction of emotional distress, negligence, intrusion into public affairs and violation of mandatory statutory duties.
Trial is scheduled Aug. 21 and both sides have brought a number of pretrial motions and in one such filing Thursday filed Thursday with Judge Jon R. Takasugi , the City Attorney's Office maintains that "inflammatory language" such as "sexual assault" or "sexual misconduct" would confuse the issues, mislead the jury and unfairly prejudice the defense.
"Rojas has not been convicted of these or any other crimes and their use is intended solely to incite some type of emotional response from the jury," according to the City Attorney's Office's court papers, which further state that the terms are not relevant to the lawsuit's causes of action.
The defense also wants the plaintiffs to be prohibited from using the so-called "reptile theory" in its arguments to the jury. The approach suggests jurors should award damages to punish defendants while deterring others. Attorneys sometimes suggest that without a proper verdict and an appropriate punishment with their verdict, the public danger will be worsened.
"An argument or suggestion that jury should act as the voice of a community and send a message to the city or the community is improper when the jury is considering questions of liability," the City Attorney's Office argues in it court papers. "The reptile theory is improper because the theory attempts to appeal to jurors' concerns about their own safety and the safety of the community, rather than the evidence regarding the plaintiff."
A hearing on the pretrial motions is scheduled Aug. 10.
During his time on the stand during his October 2021 preliminary hearing, Rojas said he turned on his body-worn camera and used a flashlight to illuminate the woman's body in the darkened bedroom and then touched the 34- year-old woman's right breast twice with his gloved left hand after noticing a mark he couldn't identify in that area.
He said he was aware that he was being recorded through his own body- cam and denied being sexually aroused at the time or trying to humiliate or degrade the dead woman.
Under questioning by his own attorney, the officer denied becoming sexually attracted to the woman when he saw her corpse.
"I go straight to the section where I see the marking," the officer said under cross-examination, explaining that he squeezed or pinched the area to see if anything would gush out because he "had no idea what it was" and was trying to find anything "that will give me a possible lead in this death."
In deposition testimony in the civil case, Rojas said that before the touching occurred, he believed that, based on his training, that in order to gather information in a death investigation that he could touch a deceased body.
"I believe that we are allowed to," Rojas said. "We generally refrain from touching, but I know it is something that is not a `shall not.' So we would just have to articulate why we did it and etc. But in this specific case, I did make the decision knowing that there was not a rule or anything to briefly touch the body."
"Rojas further testified that all of his actions at the scene were to gather information and evidence for his police report in the course and scope of his employment," according to the plaintiffs' attorneys' court papers.
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