Saturday, February 10, 2007

Sean Marsh NOT GUILTY - A cartoon, an editorial, an article and letters to the editor.

Includes a letter to the editor from Sean Marsh, setting the record straight, from his perspective.

From my perspective, it's not just that this case should never have gone to trial, it's that it went to trial when so many much more serious cases have not. When there has been little to no prosecution of REAL child abusers and molesters in the past year under Paul Gallegos (one as of last April, according to the statistics at the time). Yet he chooses to prosecute this man whose kid got a few feet ahead of him while walking down Main Street in the quiet town of Ferndale.

Many questions remain. Not the least of which is how this case came to be pulled out of the "Rejected cases" file and reactivated to the point that Gallegos himself participated in the investigation.

From the Ferndale Enterprise:

Editorial: Justice... but at what cost?

Incredulous.

That's the word to describe our reaction to the events that unfolded last week and the early part of this week at the Humboldt County Courthouse.

As we watched the trial of Sean Marsh, it was hard to believe that it was real and not some big joke, like many thought the arrest of Marsh was some eight months ago.

The prosecution was weak. No, strike that. The prosecution was embarrassing. Embarrassing to the rookie deputy district attorney who had no evidence and whose cross-examination of Marsh left Ferndalers in the audience shaking their heads.

Yes, the system worked. A jury, thank goodness, used some common sense and ruled in less than 20 minutes that Marsh did nothing wrong (perhaps even shorter than that if you take into consideration the time it takes to pick a foreperson and fill out the judgement forms.)

Who's to blame for this mess and the exorbitant amount of money spent on investigating, prosecuting, and defending Marsh? There's plenty to go around. Of course, Chief Lawson is to blame. But he's not alone. Former City Manager Michael Powers, now in King City, is also involved in this mess. Remember former Councilman Carlos Benneman and Mayor James Moore stating that it would be an "unmitigated disaster" if Powers left? Excuse us? We're still cleaning up the mess he left behind and now the city will most certainly face a lawsuit from Marsh.

As we've pondered why this case was picked up by the DA's office and prosecuted, we look back on those emails from the city manager to this paper. Many of his comments were "off the record." However, it was clear that the complaint filed against the chief by merchant Polly Stemwedel prompted the city manager to stand firmly behind the chief and push strongly for a Marsh conviction. Powers and his supporters boasted about his "fending off" a major lawsuit against the city. He never named the lawsuit publicly, but we can't help but wonder if it involved this case. Can you say backfire? Emails this week to Powers in King City were not answered.

As for Marsh, he'll survive. Worst injustices have occurred. But the damage is done. When future employers "google" his name, the words child endangerment will forever come up. His name has been not only in this paper but others, who we must say have hurt him even worse. (His name was in the Times Standard police blotter when he was arrested... we've yet to see a story about his acquittal.)

The Eureka Reporter massacred its story on Saturday on the Marsh trial. (See the Marsh letter on this page.) It irresponsibly and unfairly gave six paragraphs to a resident's phoned in opinion about the chief. Evelyn Harrison, who did not attend the trial and hear the testimony, is the mother of one-time city council candidate Rachel Harrison - a staunch police department cheerleader, no matter who is in charge. The ER's reporter was in town Friday for lunch at Curley's and was seen taking pictures with her cell phone of the "busy intersection" and Brown and Main. Why, we ask, didn't she do her job and interview a selection of residents instead of taking a phone call at her desk from a resident with a known bias?

It seems like a regular thing now for us to email the editor of that paper to point out mistakes in their coverage of Ferndale. Is it self serving to do so? You betcha. Journalists have a lousy reputation and unless responsible reporting is sought, we'll continue to be in the same column as prosecuting district attorneys are this week. Two days later, a small correction, buried on the bottom of the second page was run. Four days later, after we hounded them again, another correction, excuse me, "clarification," was run. (Coincidentally, Marsh outside of court Tuesday was explaining to the ER reporter the mistakes in her story, and how they could have affected his case, while owner Rob Arkley, a juror in an adjacent courtroom, chatted on his cell phone during a break. Too bad he didn't hear about yet another Ferndale story inaccurately reported.)

Can we as a city move on from this story? Eventually. Now, the city council will have to decide what to do with Marsh's formal complaint. And outside investigation, done after Stemwedels's complaint, has already been completed by the Fortuna Police Department into the chief's actions. It found nothing wrong with the chief's actions.

Marsh, however, deserves a public apology - from the chief, the city and the DA. Many argue he deserves a year's worth of lost wages. (He was let go fro mhis job after being a "no show" at a bank training seminar he was to lead, scheduled at 8 am the morning after his night in jail.)

Life does go on, but this soty is not over.

The system worked, as the DA's office likes to point out. But we ask... at what cost?
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Marsh acquitted
Jury finds former Main Street business owner Sean Marsh not guilty of child endangerment or interfering with duties of police officer
Feb. 8, 2007
It took a jury of six men and six women less than 20 minutes Tuesday morning to return to Courtroom Seven at the Humboldt County Courthouse and acquit former main Street business owner Sean Marsh, 38, on charges of child endangerment and interfering with the duties of a police officer.

Eight months after he was arrested on a Wednesday afternoon in Ferndale, while shopping with his eight-month pregnant wife, the former Village baking and catering owner hugged friends outside the courtroom moments after hearing the not guilty judgements.

Ferndale Police Chief Lonnie Lawson, who arrested and charged Marsh, did not wait for the verdict after testifying again on Tuesday.

Several Ferndalers, not necessarily close with the couple, traveled to Eureka to listen to the final day of testimony in a trial that lasted over a week. Some said, after reading news reports, they wanted to see first hand what was going on.

Marsh was charged with child endangerment - likely to produce great bodily harm or death - for allegedly allowing his two-year old son Everett to step off a curb 18 inches into the crosswalk at Main and Brown. He was arrested by Lawson who said he saw the child "running full speed: in front of Lentz Department store on the sidewalk. Marsh could have faced two years in jail. He has denied all along that his son was ever in any danger, and that he was right behind the youngster watching him carefully. He testified that the two had just smelled the flowers in front of the old Nilsen building and that he was on one knee, just getting up, when the chief, who was driving down Main, spotted the toddler.

Chief Lawson pulled into the intersection and parked his car at an angle to protect the child. Marsh, however, says the child was in fact shaken by Lawson's actions and that he was right behind his son to "scoop him up."

Both men differed in their testimony in court last week on what happened next. The chief claims Marsh "brushed him off" after admonishing him to keep a better watch on his child. Marsh testified that he raised his hand as to say, "I got it."

Lawson then pulled his car into a parking place near Lentz's, got out and approached Marsh. he claims Marsh was uncooperative and that he had to grab his shoulder. Marsh however, testified he was always cooperative and answered Lawson's questions.

He did not, however, produce written identification when asked by Lawson.

"I'm not required to by law," Marsh said after his acquittal Tuesday. "I gave the chief my name and birthdate."

That law was critical during judge Timothy Cissna's instructions to the jury Tuesday. He explained to the jury that one is not required to produce written identification when approached on the street by an officer.

Lawson took the stand twice in the course of the trial and had only one witness. Kevin Hamilton, owner of the Wild Blackberry Cafe, testified that he too saw the child on the sidewalk when he was driving down Main Street and exercised caution while making a U-turn.

Lawson took the stand for a second time Tuesday morning for last-minute questioning by prosecutor Jose Mendez, who attempted to prove that Lawson was not "angry" that day, as several witnesses to the arrest testified, but rather in "a very good mood."

Lawson said he had just received word that someone had donated $3,000 to the police department to purchase new body armor. He was on his way to tell former City Manager Michael Powers the news when he noticed the toddler running down the sidewalk.

Lentz's owner Polly Stemwedel filed a complaint with the city several weeks after the arrest, stating that she saw the chief during the arrest and was shocked by the angry look on his face.

On Tuesday, prosecutor Mendez discredited Stemwedel's testimony by stating that she had admitted to having a "prior beef" with the chief and often "complained to her husband" about him. He asked Lawson on the stand "if during the whole process, did he notice Mrs. Stemwedel?"

"I never saw her." replied Lawson.

"Did you make eye contact with her?" asked Mendez.

"I might have, but I don't recall seeing her there. I can't say one way or another."

During his closing arguments, Mendez repeated a theme of, "What's a police officer supposed to do?" He also called the defense a "Blame Chief Lawson defense."

"What would you do if you saw a kid on the sidewalk...walking to an intersection?" he asked jurors. "We pay money to them to investigate, put their noses in there, make sure things are okay. It would have been almost a dereliction of duties if he hadn't."

Mendez then stated that Lawson "put a hand" on Marsh's shoulder "to get him to stop." Marsh however testified that at no time did he not stop for Lawson.

"He became confrontational on certain levels." continued Mendez, describing Marsh's attitude. Witnesses on the defense side, however, such as Marilyn Benneman, Abraxas Shoe Store owner Brett Boynton, and real estate agent Jake Drake, all testified that Marsh just stood there and was not saying a word.

"Everyone else saw things after the major crux of the case," argued Mendez. "They saw someone being arrested. He has the right to ask for written identification."

Mendez continued describing a picture of Marsh attempting "to leave," although that allegation hadn't come up in previous testimony.

"I'm asking you to hold him accountable for his responsibilities," he concluded, referring to Marsh.

Public Defender Angela Fitzsimmons quickly summed up her closing arguments.

"Mr. Marsh was arrested not because he was engaged in any criminal conduct, but because he flunked the attitude test." she stated.

Fitzsimmons described Marsh as a loving and attentive father, proving that by his own testimony detailing his trip up Main Street with his son.

"Not only was he watching, but interacting," she said

She noted that the prosecution's only witness testified that he never saw the toddler enter the street.

"The evidence shows the little boy reached the end of the curb," she said, "that's it."

By convicting Marsh, Fitzsimmons told the jury, the DA would be "setting a standard" for child endangerment that would "snare innocent parents."

"That standard is ludicrous," she said while describing everyday events that occur when parents are taking care of children. "I'm sure the DA has the resources to pursue the real endangerment cases, since this week those resources were used to pursue this case."

As far as Marsh not showing written identification, Fitzsimmons explained that the law allows you to "turn away.:

"It may be rude, but it's not illegal," she said. "Officer Lawson, however, didn't like that."

Fitzsimmons then said that Lawson shoed "little or no concern" for the child, noting that he ordered Marsh to hand the child to Jake Drake, who was inside the store helping Marsh's wife Allison, shop for shoes. Drake, upon seeing the arrest outside, thought the situation was a joke and when asked by Lawson if the toddler was her child, joked back by pinching Marsh's cheek and stating, "No, this is my child."

The defender noted that the chief never contacted Allison to check on the child, or made no effort to make sure the child was in the hands of a caretaker.

She also noted the speed of the whole incident.

"Did you notice, this was the fastest investigation in the world? It all happened in minutes. How possibly, using a professional method, can you investigate child endangerment in about five minutes? In 20 minutes he had completed his report."

Fitzsimmons then noticed those in the audience and those that had testified in Marsh's defense.

"These are respectable business owners," she said. "They make up the backbone of the Ferndale business community. These are not anarchists."

Finally Fitzsimmons questioned why the DA charged Marsh.

"Did he hear Mrs. Stemwedel filed a complaint? Did he think it would be heard in the press? We can only surmise that the complaint against Officer Lawson was the reason that this case was brought to trial."

After the jury was excused, several told The Enterprise that "there just wasn't enough proof" and that "anyone who has a child knows that they can run away from you."

"there wasn't much to it," said juror Kenneth Willhoite about the case.

While defense attorney Fitzsimmons kept her usual practice of not talking to the media, prosecutor Mendez stated in an email later to The Enterprise that "we believe in the jury system... and respect it."

"I am obviously evaluating the case to see what I think worked and what didn't, though this process may take days or weeks."

Marsh, visibly relieved to have the case behind him after eight months, reiterated that the chief misperceived the situation from the beginning.

As for not showing his identification, Marsh said he was "standing up for his rights."

He also said he has thought about the case every day for eight months and that the effects of his ordeal are long term.

"Every article has involved the words child endangerment," he said. "Fifty people during jury selection saw that I'm the guy arrested for child endangerment. It's absolutely the most ludicrous thing. My wife almost died giving birth to my son. Nothing could be further from the truth."

Marsh said he wants a public apology from the chief.

"He wronged our family and wronged the entire community."

Reached later, Lawson had no comment.



###

Letters to the editor:

Questions about the Marsh case
Dear Editor:


We, along with other residents of Ferndale, have followed with interest the proceedings involving Sean Marsh. We have appreciated the coverage that you have given this series of events. Several questions, however, have arisen in our minds.
1. How much has this prosecution, including the arrest and incarceration of the defendant and the investigation of the "scene of the crime" by the district attorney and his staff, the jury trial, the entire proceeding cost the taxpayers of Ferndale and Humboldt County, and more importantly, cost the accused?
2. More important questions arise:
--a. Why was the defendant arrested rather than cited?
--b. Why was he taken to jail and required to post $50,000 bail?
--c. Why did the district attorney's office decide to proceed with prosecution after reportedly rejecting the case ("pending more investigation')?
We are privileged to live in Ferndale, a law-abiding, gentle and kind community. However, we are troubled than an event which could have been treated as a minor incident blossomed into what it has become.
Yours truly,
Patricia Hofstetter
Sally Tanner
Ferndale

Charged responds to reporting inaccuracies
(Ed.'s note: The following letter was submitted to the Eureka Reporter in response to several factual errors in an article published Saturday regarding the Sean Marsh case.)
Dear Editor:

The article submitted by Kara D. Machado on February 3, 2007 (Eureka Reporter) regarding the proceedings against Sean Marsh is inaccurate and contains elements more suited to the opinion page.

First, Machado asserts facts about Marsh's testimony that are false and libelous. Second, in an article purporting to be an accurate representation of facts involved in a trial, fully one third of the article is devoted to opinions from a person neither involved with the trial nor present at the proceedings. These opinions are misrepresentative of the issues being brought up at trial and are not indicative of the Ferndale community.

Machado's statement, "Marsh admitted he did not first stop for Lawson," is factually incorrect. The facts, as stated by Marsh in his testimony, are that Lawson did not order or request Marsh to stop. Rather, Lawson said, "You need to hold his hand (referring to Marsh's son)," Marsh acknowledged Lawson's statement by raising his hand, picked up his son, and turned around to walk back up the sidewalk. Shortly thereafter, Lawson pulled his cruiser to the curb, exited the vehicle and walked toward Marsh. Marsh having heard a door slam, turned to see Lawson behind him. Marsh stopped and turned to face Lawson. The encounter that followed is at the heart of this trial.

Not only did Marsh not "admit that he did not first stop for Lawson." but Marsh did in fact stop for Lawson as soon as it became apparent that the officer wanted to speak with him.

Machado's inaccurate statement is not a fair and true report of Marsh's testimony and fails to capture the substance of that testimony. Her reporting creates an inaccurate effect on the reader.

Furthermore, Machado did not arrive at the courtroom in time to hear Marsh's testimony. Having missed the bulk of the proceeding, Machado tried to get Marsh to speak with her "on the record" outside the courtroom. Marsh declined as instructed by his legal counsel.

Machado had an exchange with a member of the public defender's office where she defended her reputation for fair and accurate reporting. Having missed the actual testimony, it's curious how Machado acquired her version of the facts.

Depending on her source, Machado may be guilty of actual malice for her reckless disregard for the falsity of her statements.

Regarding the "opinion piece" encapsulated in Machado's report, this is a fine example fo irresponsible reporting. The opinions put forth by Evelyn Harrison are certainly not relevant to Marsh's testimony, and are not representative of the Ferndale community.

Harrison opines that the intersection of Brown and Main is 'hub' of Ferndale. really? This is simply a misrepresentation of fact. Brown is two blocks long. It has a "T" intersection with Main at one end, and the residential street of Craig on the other.

Brown is a wonderful street, but it Is not utilized to get anywhere. In the Main Street business district, Brown in undeniably the least traveled street. the other streets intersecting Main within the business district, Ocean, Shaw and Washington each are used to access the outlying areas of Ferndale and other communities.

In fact, the only time Brown could be considered a "highly congested traffic area" is when there is a fire, because it is then utilized by all of the volunteer firemen and the fire department equipment. During such an event, the siren is blaring, and all are aware that the intersection will soon be active. Literally, at all other times, a dog could take a leisurely nap in the middle of Brown and scarcely be bothered. Just to drive this point home, Main at Brown is the single most common place in Ferndale for Main Street drivers to make a U-turn. This is a resounding indictment; that drivers would rather risk an illegal maneuver in the middle of Main than trouble themselves with turning down Brown. It just doesn't go anywhere.

Harrison next expounds on the virtues of Officer Lawson. She states that Lawson is and "outstanding citizen and a wonderfully caring man. He's not the hothead police officer he's been portrayed to be. He is a gentleman."

One can deduce that Harrison knows Lawson socially. How Lawson acts in his social circles, however is irrelevant to the trial at hand. Harrison was not present at the incident involved in this trial. I assume she doesn't ride with Lawson during his shifts as police officer either. So her assertion that Lawson is not a "hothead police officer" is not based on any relevant observation.

It reminds me of the statements we hear from people who live next door to serial killers. They always say, "I'm shocked, he was such a nice quiet man."

So rather than the unfounded musings of a misguided friend to Lawson, why didn't Machado report on the testimony of the five defense witnesses who observed Lawson's interaction with Marsh?

Independently, these five witnesses described Lawson as "yelling" at Marsh, "pointing his finger in his face." "clearly agitated," :out of control," "staring with eyes so full of anger and hatred." The witnesses also described Marsh as "calm," "quiet," "just standing there holding his son."

Lawson in his testimony, stated "I never get emotional," and later added "I never get angry." According to the witnesses, Lawson's statements are incorrect.

Just for fun, let's look at another statement Lawson gave during his testimony. Lawson stated that he originally saw Marsh 200 feet from his child who was about to run into the street.

In a time span that Lawson estimated at 2 or 3 seconds, he pulled his car into the intersection, looked up and Marsh was picking up his son. Marsh had somehow covered 200 feet in two or three seconds? The world record for the 100 yard dash without starting blocks was set by Frank Wykoff in 1930 in a time of 9.4 seconds. At that pace, Wykoff could have covered 200 feet in about 6.1 seconds.

Lawson's testimony has Marsh covering that same distance twice, if not three times, as fast as the world record pace. Either Lawson is again incorrect, or Marsh should be pursuing a career as an elite runner.

Finally, Harrison does make one statement of opinion that is relevant to this case. She states of Lawson, "I would trust him with my life and the lives of any of my family members," Well, that's good, because as a police officer of Ferndale, our entire community has trust in officer Lawson. The entire community trusts that Lawson will uphold the laws of our village, state and country. We further trust that Lawson will respect the constitution and protect the civil rights and liberties of every citizen in our community.

And this brings up the relevance to this case. Marsh also trusted Lawson. It appears from the testimony at trial, that Lawson violated that trust. According to the testimony, Lawson acted in an arbitrary and capricious manner when arresting Marsh. Lawson was not acting in a lawful course in his duties to detain Marsh, and had questionable constitutional authority to demand Marsh produce an identification document after Marsh had identified himself verbally.

Furthermore, there was testimony that Lawson twisted Marsh's handcuffs as a punitive measure. This technique was denounced by our current administration when it was discovered that twisting handcuffs of prisoners at Abu Ghraib had become a common form of torture.

Whether Marsh or Lawson are "gentlemen" is irrelevant to this case, and therefore should not be the subject of an article reporting on the testimony in the case.

The testimony is that Lawson perceived a situation incorrectly. Lawson then confronted Marsh in an aggressive and confrontational manner. Marsh attempted to walk away from the confrontation and Lawson detained Marsh without cause. Lawson ordered Marsh, a pedestrian, to produce identification documents. Marsh immediately identified himself verbally. Marsh asserted that Lawson's demand for physical documentation of identity constituted an illegal search.

Unable to admit his mistake in perceiving the situation, and unwilling to acquiesce that Marsh had identified himself within the scope of the constitution, Lawson arrested Marsh.

Machado has served this community unjustly with her inaccurate and irresponsible article. She has defamed Sean Marsh by not verifying the truth or falsity of her reported "facts." Further, she has confused the public by publishing narrowly held opinions in an article representing itself as factual reporting. Please print an equally conspicuous retraction to the original article, or print this letter in response to the original article.

Sean and Allison Marsh
Eureka

RELATED:
Ferndale Enterprise Sean Marsh NOT GUILTY - A cartoon, an editorial, an article and letters to the editor
ACQUITTED ER - Sean Marsh not guilty on all counts, jury decides Tuesday
Ferndale Enterprise - DA explains Marsh "child endangerment" prosecution
ER - Sean Marsh testifies on his own behalf in child endangerment trial
ER - Marsh denies letting 2-year-old toddler walk unattended in road
Word to the Wise:
Don't Cop an Attitude in Ferndale

17 comments:

  1. It should be noted in one of the letters that Sally Tanner is a former California State Assembly Member. Pat Hoffstetter is a retired judge.

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  2. As Defense Counsel noted - "These are not anarchists."

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  3. retired judge ? Hog judging at the fair!

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  4. Paul has been won three elections! The people have spoken! He can run his office any way he wants. He's bulletproof. He's got juice.

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  5. And aren't you proud of him.

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  6. I was being sarcastic.

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  7. "He's got juice."

    And hopefully less people will keep drinking this kool-aide, I mean juice..

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  8. Who was the original rejecting deputy and what comments were made?Did the complaint form really say
    "pending investigation" or did it say something like "oh grow up everyone"? Seriously, someone had some sense.

    And if it takes Mendez weeks to figure out what went wrong here, that goes a long way to explaining his success. He's not a rookie anymore, he's been around for years. Of course, yougo taught him everything he knows about trial, so there yougo. Here's your sign.

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  9. Well, that was a $100,000 well spent.

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  10. Yeah. A week long trial. A judge, bailliffs, court reporters, support staff, a Deputy DA (though not one who got rocketed to the top of the pay scale), the DA himself, the Chief of Police, the jail staff and who knows what else.

    When it comes to Gallegos - it's not what you pay him, it's what he costs you that counts.

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  11. To 10:14. Hey smartass, no a retired Superior Court judge in Southern California. Show some class, we got loads in Ferndale to loan you.

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  12. So what I really dying to find out, and I know someone out there has the answer, who took the bar exam for PG??????

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  13. And while you are at it....who took the bar exam for Mendez. He has lost all of his trials - the few he tried. My friend was on a dui trial he lost. She is conservative, a republican and hates drunk drivers. She said he was so bad and so disorganized that the jury had to acquit and she hated it but since he couldn't prove squat - they had to. She also said that it only took them less than 30 minutes so it looks like he is getting worse with time and not better.

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  14. Another question:

    who provided the inaccurate account of the trial facts to ER reporter Kara Machado, who apparently then printed them?

    If she was not in court, and it did not come from Marsh or his attorney, it's fairly easy to surmise.

    Maybe she will be smarter next time. Anytime a reporter takes "facts" from somebody with a stake in the reporting, there a concern for accuracy, therefore it should not be reported as fact, but quoted to that person.

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  15. The implication is certainly that it came from the DA's office, and most likely Mendez himself. She would not have any reason to disbelieve him under normal circumstances.

    It took public records act demands for the Ferndale Enterprise to get accurate information from the DA himself. So these are not normal circumstances.

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  16. What is wrong with Gallegos that he goes after innocent parents and refuses to prosecute real criminals? He has been sitting on requests for warrants for almost a year against a nurse who has been terrorizing an entire neighborhood in SoHum, waving guns at people, killing animals, and committing financial abuse of a very ill woman. The nurse has repeatedly testified in court that he pointed a gun at one of those neighbors. The DA has a sworn statement from the victim and a witness to that ADW. And the perp has confessed! Why has PG not bothered to file charges on this case that he could actually win?

    ReplyDelete

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