Videotaped depositions made available to CBS 5 Investigates appear to show Pima County sheriff's detectives and SWAT members contradicting each other as they answer attorneys' questions about a search warrant raid, which ended in fatal gunfire last year.
At issue is whether an innocent man was killed in the raid, and whether the detectives on the case had done enough investigation to warrant a SWAT team entry.
The raid took place on May 5, 2011 in a housing development outside Tucson. Video of the event shows SWAT members banging on the front door, announcing themselves and setting off flash-bang grenades in the backyard. After knocking down the front door, SWAT members fired more than 70 shots into the home.
A news release issued that day alleges that the SWAT members were confronted by Jose Guerena, who was carrying an AR-15 assault rifle and opened fire on the deputies. Four days later, PCSD released an updated version of the events, which indicated Guerena was carrying the firearm, but never opened fire. According to the second release, the gun's safety was on.
"Guilt by association. They thought that his brothers may be involved in some sort of drug trafficking organization, activity, whatever the case and they thought well, we'll just hit this house too," said Christopher Scileppi, the attorney who is handling a $20 million claim against Pima County on behalf of Guerena's widow.
Scileppi said Guerena and his wife believed they were about to the victims of a home invasion.
The search warrant executed on Guerena's home was one of four executed that morning. In the affidavit, the detective wrote:
"This group of individuals has been surveiled for a six-month period. There's no pattern to suggest that a legitimate work routine exists. No one ever went to a place of business and stayed for any significant period of time."
But Guerena did have a job. He had worked full-time at a copper mine since at least 2010, pulling 12-hour shifts on the overnight schedule.
Scileppi argued that after the shooting, investigators tried to paint Guerena as the "muscle" or "enforcer" of the family drug gang. Scileppi said authorities had no evidence to back up those accusations.
Sworn statements made during depositions of detectives and SWAT members appear to show different versions of what the investigators knew about Guerena before the raid.
"They believed that the person there would be armed and most likely would not comply, " said SWAT Deputy Matt Ford.
"Sgt. Thiebalut talked about the fact that he felt that the residents at the Redwater address was the muscle. Meaning it was, you know, the people we could anticipate might have weapons or those that it was their function to protect the organization," said SWAT Lt. John Stuckey.
But when Sgt. Wayne Thiebault was asked whether he made those statements, he said he did not. Thiebault's version of what was said was backed up by another detective named Theresa Hess.
Scileppi said the contradiction is evidence that the investigators knew very little about Guerena before the raid, and that the idea that he was an enforcer was thought up by investigators later.
"It was something that they have manufactured after the fact. After the shooting in order to justify why they were there," said Scileppi.
Scileppi said the investigators missed another crucial detail about Guerena. It is the fact that he was an Iraq war vet who served two tours of duty with the Marines. He said that could explain why he grabbed his weapon during the raid.
Capt. Christopher Nanos, who is the head of the PCSD Criminal Investigations Division, told CBS 5 Investigates he still believes Guerena was involved in his brother's drug smuggling business. Both brothers have since been indicted, and the indictment names Guerena as an active member of the gang.
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