☛ 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.***
Thanks! to Thaddeus Greenson for an information-filled article!
Read the whole thing here - Attorneys asks for Douglas-Zanotti case dismissal
Paul Gallegos' obligation to present BOTH sides to the Grand Jury has been discussed here before. This article details the defense's motion and for the first time it is crystal clear just how spectacularly he failed to do that. If you remember the early months of the Palco case, it was reported that Stoen stopped talking to people and agencies that tried to tell him he had no case. In this case, Gallegos had a fully qualified expert witness who gave an opinion contrary to what Gallegos wanted to hear, and he never called him back, instead presenting the Criminal Grand Jury with a lesser qualified expert witness, and then proceeded to tear him down, pointing out that he really had no qualifications.
Excerpts - ...Because criminal grand jury proceedings are prosecution driven, and don't provide defendants with a defense, it is the legal obligation of the prosecutor to present evidence which might show the innocence of the defendants.
In one of the motions filed Wednesday, the defense argues that Gallegos failed to fulfill that obligation.
According to two declarations filed with one of the motions, District Attorney's Office Chief Investigator Mike Hislop interviewed two experts in the field of SWAT team operations and both said they did not believe there was a criminal case against Douglas and Zanotti.
Neither expert was called to testify before the grand jury.
According to the motion and accompanying declaration, Stuart Meyers is the CEO of OpTac International and president of Operational Tactics, a nonprofit organization that manages law enforcement instructors and consultation services. It was selected to train the SWAT and sniper teams for the 2002 Salt Lake City Olympics.
According to Meyers' declaration, after being briefed on the events surrounding Moore's death in a June 2007 phone conversation, Meyers told Hislop he did not believe there was a basis for criminal liability. Hislop never contacted Meyers again, according to the declaration.
EPD Sgt. William Nova, who was the SWAT team commander in April 2006 but was off-duty at the time of the Moore shooting, states in a declaration that he had a similar conversation with Hislop.
In his declaration, Nova states that Hislop told him he felt the shooting of Moore was legally justified, and that he was trying to persuade Gallegos not to bring the matter to the grand jury.
”I advised Mr. Hislop that I agreed with him, and that in my capacity both as the Eureka Police Department SWAT commander and as an uninvolved party, I believed that there had been no violation of law, policy or current SWAT practices with regard to anything that had been done in connection with the Moore incident,” Nova states in the declaration.
Nova said he would have given the same testimony before the grand jury had he been called....
Gallegos did call police training specialist George Williams to the stand as an expert witness at the request of Zanotti's attorney. Williams testified that Moore's death was a clear case of “suicide by cop,” and that the SWAT operation had been handled properly.
Gallegos questioned Williams' qualifications as an expert before the jury, saying he had 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,” Gallegos told the grand jury.
I wonder what the Grand Jury members would say to this?
The other defense motion filed Wednesday targets the pillars of Gallegos' involuntary manslaughter case: that Douglas and Zanotti acted with criminal negligence and that, in entering Moore's apartment without a Ramey warrant, officers committed an unlawful act that led to Moore's death.
In the motion, the defense argues the Ramey warrant wasn't required in the Moore situation because clear exigent circumstances existed, namely that Moore posed an immediate threat to herself and the community that necessitated prompt action.
The defense motion also takes aim at the prosecution's claim that Douglas and Zanotti acted in a criminally negligent manner by failing to adequately supervise the SWAT and crisis negotiation teams, and the communication between the two.
Not only does the evidence show that both teams, and the communication between them, was supervised, the defense argues, but Gallegos also failed to provide the grand jury with a benchmark of what constitutes “adequate supervision.”
In the motions, the defense also argues that Gallegos improperly and inadequately instructed the grand jury on the law.
”There were numerous serious errors and omissions in the prosecutor's instructions to the grand jury in this case; together and separately, they permitted the grand jury to indict on a legally improper basis and on less than probable cause,” the motion states.
The defense also argues that Gallegos failed to instruct the jury on justifiable homicide as an absolute defense to manslaughter and that, by presenting SWAT team members with immunity agreements that were known to the jury, Gallegos implied they were somehow guilty of committing a crime and that, by extension, so were their commanding officers.
Further, the defense argues in the motions that if the court finds legal fault with one of Gallegos' theories -- either of criminal negligence or the commission of an unlawful act leading to Moore's death -- it is obligated to throw out the entire indictment.
The motion states “where a court finds that one of the two alternate theories of guilt is legally unavailable, and there is no means by which to determine whether or not a conviction was predicated on that theory, the convictions must be reversed altogether.”
If a judge denies the defense motions, which are scheduled to be heard July 10, it would still have an opportunity to appeal them to another court before a trial takes place because the motions were filed within 60 days of Douglas and Zanotti's arraignment.
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