Officer, city let out of wrongful death suit Case to proceed against partner; judge says evidence 'calls into question' his story

By S.K. BARDWELL - 2/3/2004

A federal judge has dismissed the city of Houston and a Houston police officer from a wrongful death lawsuit filed by the mother of a man shot to death by an undercover narcotics officer in 2000.

But U.S. District Judge Ewing Werlein Jr. ruled the suit could continue against officer Mark Prendergast, saying evidence in the suit "calls into question" Prendergast's version of the shooting of Lanny Blaine Robinson. Prendergast's partner, Jimmy Cargill, was dismissed from the suit.

Randall Kallinen, the attorney for Robinson's mother, Colleen Mahan, said he regrets the decision to dismiss the city from the suit because "an abundance of evidence" shows that the city's policies and procedures led to Robinson's death.

Kallinen said he would provide the court with other evidence recently >received so the judge might reconsider the decision to dismiss the city.

Robinson was 49 and a chronic alcoholic and drug abuser when he was shot to death on April 19, 2000, by Prendergast.

Prendergast and Cargill were undercover when they asked Robinson for crack cocaine. Robinson said he didn't have any, but he agreed to take the officers to a place where they could buy some.

Witnesses said Robinson was so drunk when the officers picked him up that he was unable to walk, and the officers had to help him into the back seat of their unmarked Chevrolet Malibu.

About five minutes later, as Cargill drove north on the Gulf Freeway, Prendergast pulled his 9 mm Glock pistol from his waistband and shot Robinson in the head, chest and arm from the front passenger seat.

Prendergast testified in a deposition that he shot Robinson after Robinson pulled a knife and held it to the back of Cargill's head. Cargill testified he never saw the knife, and Robinson's penknife was later found closed in the pocket of his cut-off jeans.

Police said they believe a plastic-handled steak knife found on the shoulder of the highway about an hour after the shooting is the knife Robinson used to threaten Cargill.

Mahan's suit questions why the steak knife bore no fingerprints, blood, DNA evidence or marks from having fallen from a moving car and sliding across pavement; how the knife flew out of the car's back seat, when evidence and testimony indicate the only open window was the driver's, which was down a few inches; and how it came to land on the highway's right shoulder only 300 feet behind the car, which had been traveling at normal speeds in the highway's middle lane.

"Officer Prendergast is the sole source of direct evidence that Robinson threatened the officers with a knife," Werlein wrote last week. Prendergast, Werlein wrote, is "a highly interested witness in this case," and evidence in the suit "calls into question Officer Prendergast's version of events."

http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/2386368