Sunday, February 24, 2008

Police commanders' defense to file motion for dismissal

URGENT ALERT! This case was TOSSED by the Judge - never made it to trial.
☛ ER http://eurekareporter.com/article/080826-judge-throws-out-douglas-zanotti-case
Feeney said the indictments the grand jury handed down to Douglas and Zanotti in December 2007 weren’t supported by probable cause. Insufficient evidence regarding the former leaders’ alleged failure to oversee other law enforcement was also presented to the grand jury, Feeney said, and instructions given on “exigent circumstances” were inadequate.
The grand jury should have also been instructed on justifiable homicide by law enforcement officials, Feeney said.

***
Original post: TS Police commanders' defense to file motion for dismissal

Gallegos called expert witness George Williams to testify during the proceedings. Williams, a police training specialist, called the case a “clear case of suicide by cop,” and went on to call the SWAT operation “extraordinarily” well handled.
In his concluding grand jury instructions, Gallegos tears apart Williams credentials as an expert, and essentially asks the grand jury to disregard the expert witness' testimony.

”This is a gentleman who has never been a police officer,” Gallegos told the jury. “He has never been a SWAT officer. He has never been in a supervisory role that we are aware of. He was never trained in SWAT tactics. Quite simply... his summary of qualifications though impressive as to particular things is lacking as it relates to the facts that he gave an opinion as to, and that is the appropriateness and the decision making of the supervisorial staff, Chief Douglas and Lt. Zanotti on April 14, 2006.”...

...”There in fact should be someone who is qualified,” Bragg said. “If (Gallegos) felt that fellow wasn't qualified, why didn't he bring in someone he did feel was qualified to discuss SWAT procedures so the grand jury could have had a better understanding?”

Declining to elaborate too much on the defense strategy, saying he wanted to try the case in the courtroom and not in the newspapers, Rapoport said Williams' testimony will also be the subject of a future motion to dismiss the case.

”The DA chooses his witness,” Rapoport said. “He obviously did in this case. ... That's something that again is going to be the subject of a legal motion in the future.”

...”You have bad law being argued to citizens by the chief law enforcement officer in the county [Gallegos], so citizens are bound to think he knows what he's talking about,” Rapoport said, adding that a variety “fundamental” and “esoteric” errors in Gallegos' interpretation of the law would be the subject of an upcoming motion to dismiss by the defendants.

21 comments:

red said...

So let me get this straight. There was expert testimony on SWAT procedure, and the expert's opinion was that the officers acted appropriately, and PVG argued that the GJ should disregard the expert's opinion? The other evidence concerning the standard of care by officers was an incident in Fortuna with a completely different set of facts, thus rendering it worthless as a comparison?

This just gets better and better.

Here's what puzzles me: A DA has virtually absolute discretion to make charging decisions. There are checks and balances, such as prelims and PC 995, for example. Fine, you get it out of the GJ, but what is going to happen when you get it in front of a jury (if indeeed it gets that far)? Is there a qualified expert out there who will get up in front of a jury and say that the officers did not act appropriately? Even if there is such a person (note that PVG could not apparently find one for the GJ), how many experts can one reasonably anticipate that the defense will come up with?

It is not an overstatement to predict that the defense will have its pick of active SWAT commanders from every agency with a SWAT team in California to come in and say that EPD did the right thing under the circumstances present here.

PVG can charge what he wants; proving the charges beyond a reasonable doubt to 12 random citizens is a very different proposition.

Rose said...

I don't get why you would call an expert witness and then proceed to beat the crap out of them.

The whole thing is bizarre.

Anonymous said...

What's interesting is that this expert testimony was heard by the grand jury and they ended up indicting anyway. They must have found the DA's case compelling enough on the whole. We'll see if a judge and jury are similarly impressed, or whether the defense will prevail in having the charges dismissed, or beating them at trial. Personally, I think the latter is the most likely outcome.


I'm sure the defense will, as you say, have the pick of SWAT team commanders and "experts" to testify that the chief's and lieutenant's actions were legal. But from the point of the view of many members of the public, that's just another part of the problem: police never seem willing to admit error on their own part, or to recogize error by other police officers. All the more reason that a judge and jury should have the last word on this, not the cops and bloggers.

Rose said...

Yeah, forget the experts, we prefer lynch mobs and mob rule.

Anonymous said...

Seems to me it is the judge who gets to rule on matters of law like whether an entry was legal or illegal, whether there were exigent circumstances or not. You might want to check. These issues are brought up routinely prior to trial.

It is the judge who determines, based on the law. The jury just determines facts. Knock notice is not a determination for the jury. Exigent circumstances is not a determination for the jury.

red said...

Rose, PVG is obligated to present exculpatory evidence to the GJ. A failure to present potentially exculpatory evidence would be a basis for a 995 motion. Here, he presented the evidence and apparently persuaded the GJ to ignore it.

12:50, I don't disagree that law enforcement officers are sometimes reluctant to admit errors. I daresay that law enforcement is not the only profession in which that is the case. My question is, what does this criminal proceeding do to remedy that?

1:20, whether the officers were acting within the scope of their duty is a fact to be determined by the jury in this particular case. The anaolgy would be to a PC 148(a)(1) (resist or delay an officer in the course of duty), where the officer's actions are part of the elements. In fact it seems to me that PVG has the burden of proving that the officers were not acting lawfully.

Anonymous said...

Gags doesn't care about the outcome, he only cares that he can say that he did it. He, the champion of the people, exposing corruption and incompetence in the local law enforcement community. He doesn't care if he wins or not, or that he had to destroy two career police administrators to further his agenda. You mean you've never noticed the cape hanging out from under his suit coat? And the Gundersen caper is a whole nuther thing.

Anonymous said...

Rose: "Yeah, forget the experts, we prefer lynch mobs and mob rule."

Rose, only you could come up with a response like that to a post that ended with the words: "All the more reason that a judge and jury should have the last word on this, not the cops and bloggers."

A judge and jury, Rose, is not exactly a "lynch mob" or "mob rule."

Anonymous said...

Red: "12:50, I don't disagree that law enforcement officers are sometimes reluctant to admit errors...My question is, what does this criminal proceeding do to remedy that?"


Well, if the DA prevails at trial and the court sanctions the chief and the lieutenanant for their actions in this case, this would at least be some kind of justice and accountability in this case, would it not?

And whether other officers are more willing to admit error in the future or not, at least they will be aware that they could be facing a court of law to explain their actions, not just the friendly forum of a C.I.R.T. team made up of other cops.

Rose said...

"Yeah, forget the experts, we prefer lynch mobs and mob rule."

That was in response to you rather darkly threatening statement that perhaps the mob (in the form of a jury) will ignore the law and punish these men you want to see punished, just because they can see beyond the law, and know what you believe.

You want to say all the experts are liars, only wanting to protect their own, that the judges all have the facts and the law all wrong, that all cops lie to protect each other, and that none of the extensive reviews to date matter, not even the coroner's jury.

Because it hasn't yet reached the conclusion you want to see, so you hold out hope for your view to prevail - you sound like Ken Miller.

You can't conceive of the possibility that for justice to be done, this case may not even make it into court.

When it comes to the judge and jury - I have more faith in them than you do.

Rose said...

coroner's inquest.

Anonymous said...

Rose said: "That was in response to you rather darkly threatening statement that perhaps the mob (in the form of a jury) will ignore the law and punish these men you want to see punished, just because they can see beyond the law, and know what you believe."


Where did I make the "darkly threatening statement" or express that I wanted to have the jury act like a "mob"? Either you're confusing me with someone else, or you're reading way too much into my statement, twisting the meaning beyond any recognition.


Rose said: "You want to say all the experts are liars, only wanting to protect their own, that the judges all have the facts and the law all wrong, that all cops lie to protect each other, and that none of the extensive reviews to date matter, not even the coroner's jury."


Actually I didn't say any of those things. Reread my post, and try to stick with the words I used, not your wild extrapolations of those words. If I "want to say" something, I say it, I don't need you to tell me (inaccurately) what I "want to say." Don't put your words in other people's mouths, it's rude, not to mention unhygienic.


Rose: "Because it hasn't yet reached the conclusion you want to see, so you hold out hope for your view to prevail..."


And that's so wrong, because...why?


Rose: "You can't conceive of the possibility that for justice to be done, this case may not even make it into court."


Where did you get that impression? If the case doesn't make it in front of a jury, that's all part of the justice system.


Rose: "When it comes to the judge and jury - I have more faith in them than you do."


What makes you think that? Again, I stand by my own words, not your weird re-casting of them. In fact, your exercise in spin and overextrapolation only strengthens the final point I made in that post: "All the more reason that a judge and jury should have the last word on this, not the cops and bloggers."

Anonymous said...

Let's remember that supposedly the DA brought this case because he expects to prove guilt BEYOND A REASONABLE DOUBT TO A UNAMIMOUS JURY. Sure he does. He expects to prove that he can keep himself in the public eye no matter what. The only thing worse than being talked about, is not being talked about, at least for a politician.

Anonymous said...

Red at 3:22, I disagree. I believe that whether the entry was legal is a matter for the judge to decide as a matter of law. You can’t have jurors deciding what is and isn’t exigent circumstances and I don’t see this as akin to a 148 case. But, I certainly would like to hear more on why you think that the jurors can decide that issue.

But, for my money, the issue isn’t the illegal entry at all. The issue was and is whether the officers were justified when they shot at her. The old “but for” test is not applicable in that type of situation because if they were justified in shooting, then that justification is absolute for criminal liability.

Rose said...

9:02 - if I mistook the meaning of your words - I apologize. But I am tired of a certain faction trying to use the public judicial system as a weapon. Maybe you are, too.

red said...

9:39, you are correct in that whether an entry into a private residence is lawful is usually a legal question for the judge. Typically it comes up in a motion to suppress evidence under PC 1538.5, a pre-trial motion heard and decided by the court, not a jury. There is an exception, however, if the question of whether the officer is acting lawfully is an element of the case. I used the 148(a)(1) as an example (maybe I wasn't very clear about that) because the prosecution has the burden of proving that an officer was acting lawfully in performing his or her duties. It is not a violation of law to resist an illegal arrest.

Here, as far as I can tell, PVG alleged the 602.5/603 charges to support one theory of involuntaryt manslaughter - that the officers were committing an unlawful act, not amounting to a felony, when Ms. Moore was shot. That's what the misdos add. I should say that in looking at the media report it seems that the misdos were not charged separately, but alleged as one theory to support the involuntary manslaughter. I missed that earlier.

Anyhow, that's why I think that the propriety of the officer's actions are facts for the jury to decide. PVG has to prove that the officers were committing an unlawful act when Ms. Moore was shot, under that theory of the case (although it looks as if he has several alternative theories).

Rose said...

I'm looking into whether or not I can get copies of those transcripts. If I get them I will post them, so we can all know what really went on.

Anonymous said...

Ok Red, I understand what you are saying here and agree in part. However, Gallegos doesn't around it simply by charging a 602.5 and 603 charges there. He is basing this on being an illegal entry, that they should have gotten a warrant. That doesn't fly under these circumstances.

Judges decide questions of law, juries decide questions of fact. If the facts are not in dispute, a judge can determine as a matter of law, whether any jury could decide the matter otherwise. He/she also must weigh those facts in determining probable cause to uphold the indictment when the defense files its 995a.

I don't think it will get to the jury on that theory because the judge will have to rule on a 995a re: the lack of probable cause for the charges due to the legality of the entry/exigent circumstance. I also think that the judge will have to decide probable cause for the charges in relation to proximate causation. When Ms. Moore picked up the gun, the officers were justified in shooting her and this breaks the chain of causation. And it doesn't matter if the court finds that even the entry is illegal - if the undisputed evidence shows she was pointing at them when they fired, they were justified in shooting and that justification extends back to all involved - this is a matter of law and not a question of fact.

This comes up in section 1983 actions frequently and while that is a federal civil rights claims section, there is quite a lot of law on the topic.

Now, I am not saying I know all, but I think that these are the issues that may likely drive a stake thru the heart of this miserable and poorly contrived case.

Anonymous said...

The idea that this was an illegal entry is simply laughable. There's an emergency situation, the whole building, which has people stuck in it, may go up in flames, fire crews are standing by- and they needed a warrant? This isn't even hard enough for a law school exam on the emergency exception to the
4th amendment warrant requirement. No wonder the DA skipped a prelim, every judge in the county, yea, in the country, would have laughed him out of court. No, wait,
that was the PALCO appeal. Sorry.

Anonymous said...

You were right the first time 8:40....well both times

Anonymous said...

oops...9:40