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The definition also says that "under circumstances manifesting extreme indifference to human life, the person recklessly engages in conduct that creates a grave risk or death and thereby causes the death of another person."
McCarthy was hired as an expert witness by Keith Graff's father, Terry, in a lawsuit filed in 2006 against the Phoenix Police Department, Taser International (which manufactured the stun gun that killed Keith Graff) and the two officers. A former tough-guy cop who has trained thousands of police officers in tactics and weapons use, McCarthy hardly could be called a bleeding heart.
He works almost exclusively on behalf of agencies, not plaintiffs in police shooting and in-custody death lawsuits around the nation. But not this time.
McCarthy has great contempt both for the officers involved in Keith Graff's death-by-Taser and for the Phoenix Police Department's after-the-fact investigation by its internal affairs unit.
"The fact that someone in investigative or management oversight failed to recognize this act of abuse is shocking," he wrote in his report about Graff's death and subsequent internal affairs investigation.
The Phoenix department's six-person Use of Force Review Board concluded in March 2006 that Anderson or Williams had acted "in accordance with policy" during the clash with Keith Graff, and imposed no discipline.
Phoenix Lieutenant Dave Kelly explains that "none of us were out there that night, and each situation is different. Our use-of-force people concluded that the officers were within the policies we had in place, and that's just the way it is."
Privately, however, one officer after another has expressed incredulity at what happened on East Bell. It's not that Keith Graff was a sympathetic character. His drug abuse and trouble with the law were well-documented. But Tasing someone for 84 seconds straight, they say, defies common sense.
"Anderson was punishing Graff with the Taser," Ron McCarthy wrote in his report. "The fact that he held down the trigger for 84 seconds and at no time lifted the pressure of his finger to allow Graff to comply, when he obviously could have done so, is brutality."
Both Charles Anderson III and Carla Williams declined to comment for this story.
A New Times investigation of Taser deaths and injuries published last week concluded that officers in Phoenix usually deploy their stun guns with discretion. But it also goes almost without saying that cops at one time or another misuse every weapon in their arsenal, including fists, guns, and Tasers.
For someone of McCarthy's law enforcement pedigree to come to his conclusions may have led lawyers for the city of Phoenix to recently settle their part of the lawsuit with Terry Graff for $2 million. But the civil case against Taser International still is pending. It claims, in part, that the company "has failed to warn police agencies of the likely lethal dangers of its products."
As a result, the lawsuit says, police officers have been lulled into "a false sense of security" about the safety of the company's product.
That could prove a tough sell in court. As last week's story on stun guns noted, Taser International has been overwhelmingly successful in defending itself against similar product-liability torts.
And, in this case, the extended Tasing of Keith Graff appears to have had little to do with a cop's "false sense of security" or a firm's allegedly inadequate training manual.
This one appears to have been personal.
Glendale resident Terry Graff remembers his firstborn as the fun-loving boy with whom he fished just about every lake in Arizona. He still speaks proudly of how 10-year-old Keith saved the day after a car accident on a busy Phoenix street had left dad Terry unconscious behind the wheel.
"He didn't panic, just steered us to safety," Graff says. The boy later was honored by the Phoenix Fire Department for his "heroic acts and fast thinking."
But Graff, a Wisconsin native and former rock 'n' roll singer who now runs his own small business, is painfully aware that Keith had a load of personal problems at the time of his death.
"Keith did a lot of stupid 24-year-old things," his father says. "Like when he told me that he only did meth on a social basis, and I told him that was a crock. He made a lot of mistakes, but he didn't do anything that night to deserve what those cops did to him. He wasn't a violent guy."
Keith Graff attended Greenway High School but was expelled and later enrolled in Arizona Project Challenge, a boot-camp-style program sponsored by the Arizona National Guard and the state.
The program seemed to help for a while, and when Graff was 18, he enlisted in the Army, volunteering as a paratrooper with the 82nd Airborne. His father was thrilled that Keith was following in the military footsteps of his maternal grandfather, who served 30 years in the Air Force.
"He wanted to be a success in life, but he didn't know what direction to take," Terry Graff says. "We truly thought the military would be the best thing for him."
Keith won a pair of commendations during his two-year stint but received a general discharge in 2001 after driving a vehicle into a restricted area. It wasn't his first brush with military police.
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