2.29.2008

TS - Gundersen's lawyer: A 'witch hunt'

Gundersen's lawyer: A 'witch hunt'

ARCATA -- The attorney representing Blue Lake Police Chief David Gundersen said the prosecution of his client amounts to a “witch hunt” and questioned the timing and nature of one of the most recent charges -- which carries a possible life sentence.
”It's a very serious thing to lay out charges that could incarcerate a person the rest of their life,” Attorney Russell Clanton said Thursday. “It's our view the district attorney is trying to develop the case as they go along.”

Gundersen, 53, faces four additional charges on top of 12 counts of spousal rape while “using an intoxication an anesthetic substance,” and three charges allegedly committed while in jail.

Among the new charges, filed in an amended criminal complaint Wednesday, include kidnapping a second victim to commit rape, selling, offering for sale, possessing or transporting a machine gun, possessing a firearm silencer and acting unlawfully with department records in violation of the California Vehicle Code.

District Attorney Paul Gallegos said the second alleged victim came forward on Monday. The charge stems from a March 7,1999, incident in Humboldt County and carries a possible life sentence.

”It's not unusual for victims to come out when they know of an defendant that has offended in the past,” Gallegos said. “I think many people would be afraid to come forward -- they would think they would not be believed over the chief of police.”

Clanton said this matter was reported nearly 10 years ago to the Eureka Police Department, and resulted in “no action whatsoever.”

”The timing and nature of the allegation, given what we know about the history of that particular complaint, is extremely troubling,” Clanton said.

Clanton didn't want to comment on the recently added weapons charges because he hasn't received all supporting evidence from the DA's office. He did say police departments have the right and need to possess a wide variety weapons.

Clanton said he believes the charges are rooted in an ongoing custody battle between Gundersen and his ex-wife, who is an employee with the Humboldt County Sheriff's Office.

While Clanton said he still holds that opinion, it appears there are people in the law enforcement community “with an ax to grind.” He also said evidence to support the latest charges are trickling in from the DA's office, putting the defense at a disadvantage.

Gallegos said “everyone will hear what the facts are and they'll be tested in court, as opposed to someone saying something.”

Gundersen was arrested Feb. 8 at the McKinleyville Sheriff's Office substation and the first 15 charges were filed Feb. 14. His wife, who is on administrative leave, is a sergeant with the now-inoperable Blue Lake Police Department, which had a police chief, sergeant and two officers.

Gundersen has pleaded not guilty to all charges and remains at the Humboldt County Correctional Facility on $500,000 bail. He is scheduled for a bail hearing this afternoon and has a preliminary hearing scheduled Monday.

His wife, one of the alleged victims, has been labeled a hostile witness by the DA's office and has been ordered by Superior Court Judge John Feeney to return to court Monday.

Gallegos said the DA's office will try the case in court. “If we don't have sufficient evidence, he will be acquitted,” he said.
Regardless of profession, everyone is subject to the same laws, he said.

”The chief, just like everyone, is entitled to a presumption of innocence until found guilty. Until then, we can't comment.”

TS - Court documents shed light on Gundersen case

Court documents shed light on Gundersen case

Court documents in Blue Lake Police Chief David Gundersen's case file shed new light on the circumstances surrounding the investigation into his felony case, which includes charges of spousal rape and an alleged kidnapping with the intent to rape a second victim.

Gundersen has pleaded not guilty to 19 counts, including 12 charges of spousal rape using an intoxication or anesthetic substance, kidnapping for the purpose of committing rape, attempting to prevent a victim from reporting a crime, willfully violating a court order and possessing both a machine gun and a firearm with a silencer.

Gundersen's attorney, Russell Clanton, has said the spousal rape allegations stem from a custody battle between Gundersen and his ex-wife. He did not immediately return phone calls seeking comment for this story.

The court documents outline how the allegation of spousal rape was initially reported, list items reportedly found during law enforcement searches and offer some insight as to why District Attorney Paul Gallegos is now labeling Gundersen's wife, the alleged victim, as a hostile witness.

According to the documents, the case developed on Feb. 8 over the course of about 14 hours, beginning with the alleged victim being interviewed by law enforcement, followed by the issuance of search and arrest warrants, Gundersen's arrest and his wife later stepping back from her allegations.

An Emergency Protective Order, slated to expire Feb. 15, was also issued against Gundersen.

Gundersen's wife, a sergeant with the Blue Lake Police Department, arrived at the Humboldt County Sheriff's Office McKinleyville substation on the morning of Feb. 8 and met with Sheriff's Department Lt. Dave Morey, according to the Statement of Probable Cause, a document prepared by the district attorney's office to request a arrest warrant.

The probable cause document states that during the meeting she claimed her husband had sex with her “hundreds of times” while she was incapacitated after she took sleeping pills, most recently the night before. She also reported finding photographs taken without her knowledge on a computer about six months earlier and confronting her husband about them.

While the timeline is unclear, according to the same document, Gundersen's current wife and his ex-wife spoke while she was at the McKinleyville substation, where his ex-wife works as an office clerk. At some point, the ex-wife relayed information to Morey, which prompted his involvement in the investigation, the document states.

It also states the alleged victim had previously told the ex-wife about her concerns regarding Gundersen, and had given the ex-wife an external hard drive from Gundersen's home computer, which she believed to contain non-consensual nude photographs of her.

The alleged victim, referred to as Jane Doe, was questioned in a videotaped interview at the substation. District Attorney Paul Gallegos said Thursday that there is law to support admitting the videotaped interview as evidence in court.

”I believe there is law to support that under certain circumstances,” Gallegos said. “But, at the end of the day, judges make rulings, not me.”

About the same time Gundersen was taken into custody, his wife reportedly declined a Sexual Assault Response Team, or SART, exam after initially agreeing to take one, with personnel reporting she “now was saying the sexual intercourse last night was consensual,” a sheriff's report states.

A short time later, a detective contacted Gundersen's wife to verify her statements during the taped interview, according to the same report.

”Jane said that is what she told us, but now in her mind the sex was consensual,” the report states. “I asked Jane if the suspect asked her if he could have sex with her. Jane said no. I asked Jane if the suspect knew she was under the influence of a sleeping aid. Jane said yes, the suspect told her to take it. I stated the suspect knew she was under the influence of a sleeping aid, and he had sex with her, without her permission. Jane said yes. Jane said now, in her mind, it was consensual sex.”

Another sheriff's office report said that Gundersen contacted his wife less than two hours after her conversation with the detective, which violated the court's Emergency Protective Order.

Included in the report are summaries of phone conversations Gundersen reportedly had while in custody. It states he made five calls to his wife early on Feb. 9, repeatedly asking her to call law enforcement personnel to request that the charges be dropped and to tell them she was not pressing charges.

The report states that a CD disc of the conversations has been placed into evidence.

Court documents also list some of the items allegedly seized during searches of Gundersen's house and vehicles. Those include “dozens of prescription pill bottles, some of which were issued to people other than Gundersen or 'Confidential Victim 1,' and some inscribed with Blue Lake Police Department case numbers,” according to the district attorney's office report. Digital cameras, video recorders, computers and firearms were also reportedly seized.

Two of the firearms were of special interest, according to the report: a Heckler & Koch MP5 submachine gun and a Heckler & Koch Mark 23 pistol with a threaded barrel and attached silencer. Both firearms allegedly returned with no record on file when checked on the California Law Enforcement Telecommunication System, the report states.

”The Blue Lake Police Department was also searched pursuant to the search warrant,” the report states. “Computer equipment and firearms were seized from that location as well.”

Gundersen is scheduled to have a hearing to reconsider his $500,000 bail this afternoon, in light of the new charges filed Wednesday. He is also due back in court Monday morning, when his preliminary hearing is scheduled to begin.
Gallegos said wouldn't rule out the possibility of filing additional charges against Gundersen.

”If we have evidence of other criminal activity, we'll file charges,” Gallegos said. “The defendant has the right to a trial and the presumption of innocence always applies. The burden of proof is always on us.”

Thadeus Greenson/The Times-Standard
Article Launched: 02/29/2008 01:32:03 AM P

ER - Gundersen’s attorney: Gallegos to face difficulty upholding burden of proof


Blue Lake Police Chief David Gundersen's attorney Russell J. Clanton, of the Arcata-based firm, Russell J. Clanton and Associates, held a press conference Thursday afternoon to discuss the progress of Gundersen’s case. Daniel Solomon/The Eureka Reporter
Gundersen’s attorney: Gallegos to face difficulty upholding burden of proof

Blue Lake Police Chief David Gundersen’s attorney, Russell J. Clanton, held a press conference in Arcata Thursday to discuss the new charges facing his client.

Clanton said he’s reviewed the amended complaint that Humboldt County District Attorney Paul Gallegos filed Wednesday, which added four charges to the 15 already alleged against Gundersen. But he hasn’t received all of the evidence.

Clanton said he was troubled by the timing Gallegos chose to file the new charges — the day Gundersen was scheduled to have a preliminary hearing.

Rather than hear the DA’s evidence, Clanton heard that his client is accused of felony kidnapping a different victim for the purpose of rape — while he was armed.

Gundersen allegedly committed the offense on March 7, 1999, — nearly nine years ago in Humboldt County.

The accusation was filed with the Eureka Police Department at the time, but the department did not take any action, Clanton said.

He called the charge “extremely troubling,” because it carries a penalty of life in prison with the possibility of parole.

Clanton said if Gallegos is threatening life in prison, he should provide the evidence for that charge.

“It appears the DA is developing his case as we go forward,” Clanton said. He said it’s horribly unfair, and called it a “witch hunt” and “character assassination.”

Clanton dismissed another felony charge filed Wednesday — unlawful possession of an MP5 machine gun — citing that it is not unusual for small-town police departments to have access to a variety of weapons.

He said that it is Gundersen’s opinion that once all the facts are out, he’ll be found not guilty.

There’s a day of reckoning for these type of allegations and the DA has the burden of proof, Clanton said.

Citing the ferocity of the investigation, Clanton said that though Gallegos and Gundersen had a sound relationship, “it would appear there are individuals in the law enforcement community who have axes to grind (with Chief Gundersen).”

By EMILY WILSON, The Eureka Reporter
Published: Feb 28 2008, 11:52 PM · Updated: Feb 29 2008, 12:27 AM

2.28.2008

TS - State of mind

State of mind

Friends of Cheri Lyn Moore questioned during grand jury proceedings that led to charges of involuntary manslaughter against top Eureka police officials seem to disagree over whether her death might have been, as a defense expert insisted, suicide by cop.

An expert provided by Lt. Tony Zanotti, SWAT team commander on April 14, 2006, told the grand jury that Moore showed a number of signs that she was suicidal and that she intended for police to kill her. Expert George Williams said that any non-suicidal suspect faced with three armed policemen would have surrendered.

”The police weren't out there fishing for this,” Williams told the grand jury under questioning by Humboldt County District Attorney Paul Gallegos. “She initiated this action.”

Zanotti and former Police Chief Dave Douglas were brought up on involuntary manslaughter charges stemming from the 2006 incident after a criminal grand jury found the SWAT team acted without warrants and failed to adequately supervise the operation.

Moore was shot dead by officers who stormed her apartment after a 2 1/2-hour standoff, during which Moore threw objects out her window, brandished a flare gun, made threats and blared music.

Moore had called county mental health workers who alerted police to her threats to burn down her apartment building at 516 G St. She was reportedly despondent over the anniversary of her son's death and agitated from not taking her medication.

Moore may also have been gravely confused over the police activity that was unfolding around her. Moore's friend Marcus

Smith told the grand jury he talked to Moore several times that day. He was on a cell phone with Moore as police were arriving, and was later told by a member of the negotiating team to hang up.

”And she didn't believe that they were real cops out there,” Smith said. “She thought it was the landlord trying to break in and have sex with her. And I indeed told her, 'No, they're real cops out there.'”

Moore had previously filed a suit alleging sexual harassment by her landlord.

Smith said he left the scene and called 911 on his way to Arcata. He told a dispatcher that Moore would surrender if she was brought some cigarettes.

”The lady doesn't want to die,” Smith said he told her. “She just wants me to bring her a cigarette and I can walk her down.”

The dispatcher transferred him to Eureka dispatch. When Smith got back to Eureka, he testified, he told Officer Wayne Cox that Moore wanted cigarettes, and felt there was some hope the situation would end peacefully.

Other testimony suggested Moore may have been suicidal for some time. Fellow resident and friend Brenda Bernier said Moore would sometimes get agitated, and she would calm her down. Bernier said she didn't know anything was wrong that day until she saw officers approaching Moore's apartment door, and learned that Moore had a flare gun and had threatened to burn down the building.

After otherwise general testimony, Gallegos thanked her for testifying. Then Bernier said something that seemed to surprise the DA and the jurors.

”The only thing that she told me is she would never leave the apartment alive,” Bernier said.

Bernier added that Moore had told her that before April 14, 2006, when she was reportedly having trouble with her landlord.

Detective Neil Hubbard said that when his crew went to investigate the shooting scene, he found some particles, and a small burn mark, on the floor outside Moore's apartment door which were later determined to be from a misfire of a less-than-lethal weapon one of the SWAT officers had been carrying. He also found a note taped to her door, or on the floor near the door, and read the text to the court.

”My friend sits in the camp chair when I leave the house. Now this is -- you'll have a legal registered 9 mm pointed at you and we can legally shoot you. Not hard to miss. Don't know -- you don't know me. Cheri is not stupid and good aim,” the note read, Hubbard said.

But he also said there were several other scribbled notes strewn around the apartment.
John Driscoll can be reached at 441-0504 or jdriscoll@times-standard.com.
John Driscoll/The Times-Standard
Article Launched: 02/28/2008 01:24:35 AM PST

TS - Gundersen faces new charges of kidnapping, possessing a machine gun

Gundersen faces new charges of kidnapping, possessing a machine gun

Blue Lake Police Chief David Gundersen is facing four additional charges after the Humboldt County District Attorney's Office filed an amended criminal complaint Wednesday.

The new counts include allegations of kidnapping to commit rape involving a second victim and selling, attempting to sell, possessing or transporting a machine gun.

Humboldt County District Attorney Paul Gallegos also moved to have the defendant's $500,000 bail reconsidered and put in alignment with the county's bail schedule, in light of the new charges.

Gundersen was charged earlier this month with 12 counts of spousal rape while using “an intoxication and anesthetic substance,” as well as several charges allegedly committed while in custody: Attempting to prevent a victim from reporting a crime, willfully violating a court order and being in possession of a controlled substance without a prescription.

Gundersen pleaded not guilty to the original charges Feb. 14, and his attorney, Russell Clanton, said he believes the charges were rooted in an ongoing custody battle between Gundersen and his ex-wife.

The amended complaint alleges Gundersen did willfully “kidnap or carry away” a second victim for the purpose of committing forcible rape in March 1999, and that the alleged crime was committed with the use of a firearm.

Gundersen also now stands accused of selling, offering for sale, possessing or transporting a machine gun, and being in possession of a silencer for a firearm.

Gallegos identified the machine gun as a fully automatic Heckler & Koch MP5, a German-made 9mm weapon capable of firing 800 rounds a minute.

The complaint further alleges that Gundersen acted unlawfully with department records, either by illegally disclosing information, using false representation to obtain records or participating in the sale of records in violation of the California Vehicle Code.

Gundersen pleaded not guilty to the four additional charges in court Wednesday.

Because the amended complaint was filed in the morning, Clanton asked the court to continue Gundersen's preliminary hearing to Monday.

”I understand it puts him at a bit of a disadvantage, and I don't have any problem with continuing the matter,” Gallegos said.
Superior Court Judge John Feeney agreed, and scheduled the two-day preliminary hearing to start at 8:30 a.m. Monday.

Gundersen's wife, one of the alleged victims in the case, was in court with her attorney. Gallegos asked the judge to order her return to court Monday, stating she may be a hostile witness.

”We clearly expect her to be a hostile witness,” Gallegos said after leaving court. “Her interests now are hostile -- not in the sense of swinging -- but hostile to the case.”

Feeney made the order, and Gallegos said he expects the alleged victim to be on the witness stand for several hours Monday.

Because of the seriousness of the charges, Gallegos asked the judge to reconsider Gundersen's $500,000 bail, especially because the additional rape charge carries a life sentence. Clanton asked that the court give the defense the 48 hours it is entitled to under law to review the new charges in advance of the bail hearing.

Feeney suggested addressing the matter of bail along with the preliminary hearing scheduled for Monday, but Gallegos objected, asking that the bail hearing be scheduled as soon as legally possible because of the serious nature of the charges.
The judge then set the bail hearing for Friday afternoon.

Gundersen appeared in court clad in a red jumpsuit with his hands cuffed in front of him.

The Humboldt County Correctional Facility uses red jumpsuits to identify inmates who are kept in isolation.

Clanton was not available for comment after court Wednesday, but has scheduled a press conference for this afternoon.

Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com

Box: Charges filed against Blue Lake Police Chief David Gundersen to date:
New charges, filed Wednesday:
* Kidnapping or carrying away someone for the purpose of committing rape. The charges stem from a March 7, 1999, incident in Humboldt County involving a second victim, and involved the use of a firearm. The offense carries a possible life sentence.
* Selling, offering for sale, possessing or transporting a machine gun.
* Possessing a firearm silencer.
* Acting unlawfully with department records, either by illegally disclosing information, using false representation to obtain records or participating in the sale of records, in violation of the California Vehicle Code. This charge stems from a Sept. 28, 2007, incident within the county.
Charges filed Feb. 14:
* 12 counts of spousal rape while using “an intoxication and anesthetic substance.” The alleged incidents date back to March 2007, and the most recent allegation was reported to have happened Feb. 7 -- the day before Gundersen's arrest. There is one count for every month since March 2007.
* Attempting to prevent a victim from reporting a crime. The charge stems from a Feb. 9, incident while Gundersen was in custody.
* Willfully violating a court order, which also allegedly occurred while in custody.
* Possessing a controlled substance without a prescription, which also allegedly occurred while in custody.

Thadeus Greenson/The Times-Standard
Article Launched: 02/28/2008 01:34:07 AM PST

ER - Four new charges against Gundersen

Four new charges against Gundersen

Four new charges against Gundersen

By EMILY WILSON, The Eureka Reporter
Published: Feb 27 2008, 11:16 PM · Updated: Feb 28 2008, 12:23 AM
Category: Local News
Topic: Blue Lake
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In a previous interview, Humboldt County District Attorney Paul Gallegos said the case against Blue Lake Police Chief David Gundersen “(is) a bigger case than we thought,” and he meant it.

Gundersen’s preliminary hearing was scheduled for Wednesday in the Humboldt County Courthouse in Superior Court, but Gallegos walked in and slapped the defendant with four more accusations.

Superior Court Judge John T. Feeney filed the amended complaint, which reflected the new accusations in addition to 12 felony counts of spousal rape with an intoxicating or anesthetic substance, one felony count of dissuading or preventing a witness or victim from testifying, possession of a controlled substance without a prescription and willful disobedience of the terms of a court process or court order.

Gundersen’s attorney — Russell J. Clanton of the Arcata-based firm, Russell J. Clanton & Associates — said he received a fax of the new complaint on Tuesday.

However, he requested the preliminary hearing be continued until Monday to give him time to review the accusations. The hearing is scheduled for Monday at 8:30 a.m.

Gundersen — who has been in custody for nearly three weeks — did not waive his right to a speedy trial.

Feeney made use of the appearances by both parties and arraigned the chief on the four new charges.

They include one felony count of allegedly using a firearm to kidnap or carry away an alleged victim for the purpose of rape around March 7, 1999 — an alleged violation of California Penal Code 209 (b)(1).

This alleged victim is not Gundersen’s wife or his former wife, Gallegos said. The alleged offense is considered a felony under PC 1192.7 (c)(8) and a violent felony under PC 667.5 (c)(8).

Gundersen is further accused of one felony count of allegedly selling, offering to sell, possessing or knowingly transporting a Heckler & Koch MP5 machine gun — around Feb. 8 — an alleged violation of PC 12220 (a).

The gun shoots about 700 bullets per minute, Gallegos said.

The third charge — one felony count of possessing a silencer for firearms — also occurred near Feb. 8. It is an alleged violation of PC 12520.

Lastly, he was charged with one count of allegedly violating California Vehicle Code Section 1808.45, for disclosing information from an unnamed-department record, using false representation to obtain the record, using the information for a purpose other than what it was requested for, or participating in the sale or distribution of the information without prior disclosure around Sept. 28.

Gundersen pleaded not guilty to all four counts. At his arraignment on Feb. 13, he pleaded not guilty to all the previous charges.

Gallegos requested that Feeney raise Gundersen’s bail from $500,000 to an amount set by the bail schedule — considering the new charges. Feeney scheduled a bail hearing for Friday at 2 p.m. in Courtroom Three.
Gundersen’s wife — a law enforcement official at a local agency and presumably the alleged victim — was subpoenaed for Wednesday’s hearing.

She is presumably the victim because the DA’s Office charged Gundersen with 12 counts of spousal rape that allegedly occurred monthly over the past year.

She appeared in the Courthouse with her recently hired attorney Neal Sanders of Eureka.

She was also subpoenaed for the preliminary hearing scheduled for Monday. If she does not testify, she will be held in contempt of court, Gallegos said. “You have the power to not testify, but you don’t have the right.”

She is considered a hostile witness, Gallegos said, because it appears she does not want to testify against her husband. She recently told The Eureka Reporter that Gundersen has her support in this criminal case.
It is not unusual for victims who were sexually assaulted by their partners to recant their accusations, Gallegos said, adding: “They love the offender.”

Many domestic violence cases fall to the wayside because it is difficult for victims to testify against their spouses, Gallegos added.

“We actually need (people) in court,” he said.

At the preliminary hearing, the prosecution will present evidence to persuade the judge that there is probable cause for a trial. That evidence may include a statement from the alleged victim.

It’s presumable that the she made a statement to the DA’s Office accusing Gundersen of spousal rape because admissible evidence is necessary to charge someone with a crime.

Hearsay or information from a third party does not equate to admissible evidence. Unless there was a witness to the alleged rapes — it is likely the suspected victim came forth.

If Gallegos is successful, Gundersen will be held in jail for trial. If Gundersen is convicted of the spousal-rape charges, he’ll face a sentence of about 30 years in prison. If he is convicted of rape and kidnapping while armed, he’ll face life in prison with the possibility of parole.

TS - Blue Lake changed policy to allow Gundersen, wife to work together

Blue Lake changed policy to allow Gundersen, wife to work together

The city of Blue Lake changed its policy on spouses working together in the same department three years ago to avoid finding new supervisors for the police department, officials said.

Although it is unclear if Chief David Gundersen, who is facing 12 counts of spousal rape in addition to seven other charges, and his current wife, a Blue Lake police department sergeant, were married at the time, the City Council felt it was necessary to address their personal relationship with an ordinance, said City Manager Wiley Buck.

Gundersen has pleaded not guilty to all of the charges.

”The whole issue was we had no mechanism, if there was a problem, to avoid any problems with relationships,” Buck said.
He said he was not sure if they were married at the time the ordinance was passed, but even a live-in situation can lead to issues that would affect a couple who work together.

Blue Lake hired its police sergeant in September 1999 and hired Gundersen in November 1999.

Marriage licenses are recorded in individual counties and can be confidential. There is no public record of their marriage in Humboldt County.

The ordinance, which was put in place in February 2005, removed restrictions on spouses working together in the same department, but also gave the City Council authority to take action if problems did arise.

”If it wasn't working professionally then we had options in terms of changing the employment status of one or the other,” said Councilwoman Marlene Smith. She said Buck brought the matter before the council because Gundersen and his wife had been working outside of the policy.

”It was suggested that we revisit the policy and see if we could make it fit the situation,” said Smith, adding that it would have been hard for Blue Lake to replace one or both of its only supervising officers.

The city is currently facing the difficulties of a lack of supervising officers. Since Gundersen and his wife are both on administrative leave, the remaining two officers have been unable to do regular patrolling duties without a supervisor, officials said.

”It's one of those issues that we felt that we were kind stuck in the middle,” said Mayor Sherman Shapiro of the 2005 ordinance. Being a small city, Shapiro said it would have been harder to find replacements, but the ordinance is something the council will be reviewing.

Smith agreed.

”We're going to revisit this and see if we can't do something that's a little bit different, a little bit better,” Smith said. “In my opinion, it was a decision we made that in hindsight proved to be not wise.”

Donna Tam can be reached at 441-0532 or dtam@times-standard.com.
Donna Tam/The Times-Standard
Article Launched: 02/28/2008 01:27:20 AM PST

2.27.2008

‘Fatal funnel’ for law enforcement in Cheri Lyn Moore stand off

Last November, during the criminal grand jury investigation into the death of Cheri Lyn Moore, Eureka Police Department Detective and acting SWAT team commander Todd Wilcox referred to Moore’s doorway as the “fatal funnel in law enforcement.”

“We don’t know what’s inside,” he said.

EPD Officer and SWAT assistant team-leader Rodrigo Reyna-Sanchez told the grand jury that SWAT was acting as an arrest-react team when they entered Moore’s apartment.

The rules of engagement — according to EPD policy — are not to use lethal force unless necessary to protect a hostage, innocent bystanders, the police or the suspect, he said.

According to the officers who testified, Moore had threatened citizens with fire and the police by pointing her flare gun at them.

At 12:33 p.m. on April 14, 2006 — the day Moore was killed — EPD Officer Robert Mengel radioed to SWAT that Moore’s hands were empty. Sanchez breached the door, and four armed EPD officers entered.

Officer Rocky Harpham entered first with a Benelli semiautomatic 12-gauge shotgun — followed by Sgt. Mike Johnson, carrying an AR15 rifle.

Officer Tim Jones was next with a FN303 less-lethal kinetic energy projectile, and Officer Terrance Liles — also carrying a Benelli — entered fourth. After grabbing a handgun, Sanchez followed.

Humboldt County District Attorney Paul Gallegos asked why the team had maximum firepower up-front.

“It’s a credible threat and we want to go in there behind as much firepower as we can to protect ourselves,” Sanchez said.

Jones testified that a long gun — such as a rifle or shotgun — has a better chance of stopping a threat more quickly.

Gallegos asked why the less-lethal weapon wasn’t fired first.

“(Using a less-lethal weapon without lethal cover) really puts the less-lethal operator at risk of losing his-or-her life or being injured,” Jones said. “Commands had been given, but at the time when she pointed (the weapon) at us, we were kind of out-of-time at that
point, in fear for our safety.”

On Dec. 3, the grand jury handed up indictments for then-acting EPD Chief David Douglas and Lt. Antonio Zanotti, incident commander, determining that their actions may have been negligent — resulting in manslaughter. No charges have yet been filed against either.

Gallegos questioned why SWAT entered Moore’s apartment before negotiations were exhausted.

EPD Dispatcher Keziah Moss testified that Humboldt County Department of Health and Human Services - Mental Health Branch employee Craig Pasquini requested a welfare check on Moore that day.

The EPD routinely performs welfare checks on MHB patients when the public or another agency is concerned about their welfare.

Moss testified that Pasquini told her, “(Moore) was despondent over — suicidal over — the death of her son 12 years ago (and) that she had purchased a 12-gauge flare gun. ... She (Moore) was threatening to burn down the building and kill everyone inside.”

The SWAT team was not informed that EPD conducted a welfare check on Moore four days earlier, or other information about her welfare, such as threats to burn down the building down on Mothers’ Day.

Individual officers were aware of Moore’s behavior and health based on their own experiences, not information that the Crisis Negotiation Team provided.

Harpham told the grand jury that he was not aware that Moore intended to go to a court hearing at 1 p.m. that day. Nor did he know that Moore’s friend had delivered cigarettes to the EPD that she had requested.

“Did you understand that Ms. Moore had indicated that if she was provided those cigarettes she would come out peacefully?” Gallegos asked.

Harpham replied, no.

Would the information about Moore wanting cigarettes and to make a court appearance at 1 p.m. have been helpful information in formulating a plan? Gallegos asked Sanchez.

“If we had gotten that information, we would have incorporated that into our plans,” Sanchez said.

Sanchez testified that the CNT information was given to Zanotti, and he gives it to Wilcox — who informs the SWAT team.

Gallegos asked CNT supervisor Lt. Lynne Soderberg, if there were any attempts to tell Moore that her cigarettes had arrived before the SWAT team went in.

“I don’t believe we had any communication with her to be able to start that,” Soderberg said. She testified that postponing the plan until that was communicated was not an option.

In other stand-offs, when the suspect had put their handgun down, negotiations continued and SWAT did not enter, Soderberg said, according to the transcripts. This case was different because of the threat of fire, she said.

Wilcox’s testimony mirrored that statement. Even if he knew Moore planned on attending court, the plan to enter when she put the gun down would have stood, he said, according to the transcripts.

“We were trying to deal with what we felt was an emergency potential threat,” Wilcox told the grand jury.

Despite how negotiations were going, the plan was for SWAT to enter the building because Moore’s threats affected innocent citizens, and she had threatened police during the welfare check, according to several officers’ testimonies.

“We essentially were ready to go regardless of what the negotiations are,” Sanchez said, according to the transcripts.

Harpham testified that he didn’t think SWAT needed a warrant to enter Moore’s apartment, based on his understanding of Penal Code 835 (A).

“If a peace officer has a reasonable suspicion that a crime has occurred, he is allowed to use reasonable force to effect an arrest,” he said.

Under the circumstances, the EPD felt they had a hot pursuit situation, Harpham continued. A hot pursuit is an exigent circumstance where the Supreme Court has said that officers don’t need a warrant, he explained to the grand jury.

When the EPD arrived to conduct a welfare check that morning, Moore’s landlord unlocked her door for them, and according to several officers’ testimonies, she pointed the flare gun at them.

“They had a firearm brandished at them which was a serious felony,” Harpham testified.


By EMILY WILSON, The Eureka Reporter
Published: Feb 26 2008, 11:19 PM

List of Cheri Moore related coverage with links
here

2.26.2008

Larry Glass, Mark Lovelace and CREG

Interesting looking back at Larry Glass' involvement and statements about the Marina Center... and look, there's Mark Lovelace in a prominent position... it's all the usual suspects, "Baykeeper" too...

From: "Mark Lovelace" mailto:mail@healthyhumboldt.org
Date: March 22, 2006 9:47:02 AM PST
To: "Healthy Humboldt Coalition" mail@healthyhumboldt.org
Subject: Home Depot poses economic, cleanup concerns
Reply-To: "Mark Lovelace" mail@healthyhumboldt.org


Development poses economic, cleanup concerns, group says
Thadeus Greenson
March 22, 2006

EUREKA -- Members of the newly formed Citizens for Real Economic Growth expressed concerns about the environmental and economic impacts of the proposed Balloon Tract development Tuesday night during a presentation at the Humboldt County Democratic Central Committee (HCDCC) headquarters.

About 45 people attended the presentation and the following question and answer period, both of which were rushed along due to the time constraints of a following HCDCC business meeting.
Citing an array of economic studies, as well as city and county planning documents, Citizens for Real Economic Growth members Larry Glass and Mark Lovelace argued that the proposed Balloon Tract development goes against city and county plans for development and would irrevocably harm the local economy.

Security National owners Rob and Cherie Arkley are proposing to build a 400,000-square-foot development on the Balloon Tract that will include shops, restaurants, office space, a Home Depot, the Discovery Museum and lofts on an adjacent parcel. The Arkleys will be asking the city to change the site's zoning from public to commercial and industrial to pave the way for the project.

”Why are we pursuing this?” Lovelace asked rhetorically. “It goes against everything that's on paper about economic development in Humboldt County and the use of this property and it goes directly against the will of the voters.”

The will of the voters to which Lovelace referred, was a 1999 ballot measure in which Wal-Mart tried to obtain a similar zoning change that was rejected by a 61 percent margin.

Lovelace cited a number of economic studies regarding the impact of Home Depot stores on competing hardware businesses. He said not only would a Home Depot take major amounts of business away from some 200 local retailers, but it would siphon that money directly out of the local economy.

”There's a wealth of information on the Web, and I would really encourage people to go out there and seek it out,” Lovelace said. “Don't just take my word for it, go out and do your homework.”

During his portion of the presentation, Glass said he feels like the public is being left out of the Balloon Tract decision-making process and lambasted the city of Eureka for not aggressively pursuing the clean-up of the site that was left contaminated by Union Pacific Railroads.

Pete Nichols, director of Humboldt Bay Keeper, was in attendance and said major issues remain surrounding the contamination of the site that will be addressed either during negotiations with Union Pacific in the coming weeks or ultimately with a lawsuit.

Security National Senior Vice President Brian Morrissey attended the presentation and said afterward that, while he didn't agree with everything being said, he thinks these types of public information meetings are important. He added that Security National is confident that the majority of Eureka supports this project.

Security National will hold an open house today focusing on environmental issues. Panelists who have worked on the site or have brownfield expertise will be available to answer questions at the open house, which will be held from 6 to 9 p.m. at the Red Lion in Eureka.

2.24.2008

TS - Police commanders' defense to file motion for dismissal

Police commanders' defense to file motion for dismissal

Defense attorneys for former Eureka Police Chief David Douglas and Lt. Tony Zanotti weighed in last week on what they perceive to be flaws in the case against their clients, and their intent to file multiple motions to dismiss the case in the near future.

The two defendants were indicted Dec. 3 by a criminal grand jury on charges of involuntary manslaughter stemming from their decision making roles in an April 2006 standoff, which left 48-year-old Cheri Lyn Moore riddled with police bullets.

Transcripts of the grand jury proceedings -- unsealed by a superior court judge this week after a series of legal motions on behalf of the Times-Standard -- show District Attorney Paul Gallegos' case hinges in part on the defendants' having failed to get a Ramey warrant before entering Moore's apartment and the concept of criminal negligence.

The defense argued against the judge's unsealing the documents, saying Gallegos' instructions to the grand jury contained erroneous statements of law that could prejudice the entire jury pool if widely disseminated. Friday, William Rapoport, Zanotti's attorney, and Bill Bragg, who is representing Douglas, elaborated on their stance.

”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
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in Gallegos' interpretation of the law would be the subject of an upcoming motion to dismiss by the defendants.
Bragg said Friday one of the larger flaws in Gallegos' argument is that he fails to thoroughly instruct the jury on the topic of exigent circumstances, or whether the standoff situation posed a grave and immediate enough threat to the community to justify forcing a warrant-less entry into Moore's apartment.

Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, brandished a flare gun at officers, threw things out of her second-story apartment window and threatened to burn the building down during the two-hour standoff that preceded her April 14, 2006 death.

Officers have said they believed Moore had put down the flare gun when the decision was made to storm her apartment but, upon entering, SWAT team members said Moore pointed the weapon at them. She was shot nine times.

While instructing the grand jury, Gallegos calls into question whether such exigent circumstances really existed.

That police set up the SWAT command center in the same building, failed to fully evacuate the building and didn't evacuate adjacent buildings, Gallegos said, shows the police did not perceive Moore as an imminent threat.

”These are things which you can all consider to determine whether they thought there was a risk that this building was going to suddenly burn down and they needed to get in there,” Gallegos told the jury. “That is important because if you don't need to get in there, there are no exigent circumstances.”

Bragg said Friday Gallegos failed to instruct the jury explicitly on what exigent circumstances are, and how they are evaluated by a SWAT team operation.

”My recollection is that there was nothing represented to the grand jury as to what the standard of care would be in a SWAT response scenario,” Bragg said.

Drawing a parallel to medical malpractice cases, Bragg said SWAT operations are so far out of an average juror's knowledge base that Gallegos needed to provide a SWAT team standard for the jury to compare the Eureka team's actions against.

The question, Bragg said, is not just what the jurors would have done in their shoes, but what another, rational, trained professional would do in their shoes.

”There has to be some evidence presented for what the standard of care is for that particular profession, and the instance in which that professional was operating,” Bragg said. “There are standards for SWAT conduct, and there are experts in SWAT procedures out there that could have been presented.”

The general topic of experts is also a point of contention for the defense.

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.”

Bragg and Rapoport seemed to disagree on why Gallegos called Williams to testify. Bragg said it was based on Rapoport's suggestion, and Rapoport said it was because Williams had submitted a report to the coroner's office on the case. Either way, both agreed that if Gallegos didn't think Williams was a qualified expert witness, the district attorney should have called someone else.

”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.”

Thadeus Greenson/The Times-Standard
Article Launched: 02/24/2008 01:34:12 AM PST

2.22.2008

TS - Judge continues Douglas-Zanotti arraignment


Judge continues Douglas-Zanotti arraignment

Superior Court Judge Timothy Cissna agreed Thursday to continue the arraignment of former Eureka Police Chief David Douglas and Lt. Tony Zanotti on involuntary manslaughter charges for the shooting death of Cheri Lyn Moore until April 1.
Deputy District Attorney Maggie Fleming said District Attorney Paul Gallegos and the defense agreed to the continuation to give the defense time to receive and review copies of the evidence exhibits presented during the criminal grand jury proceedings.

Meanwhile, experts on law and police procedure gave the Times-Standard their views about the case, and information contained in recently unsealed transcripts of the grand jury proceedings that led to the indictment of the two commanding officers.

The District Attorney's Office officially announced on Dec. 10 that the criminal grand jury convened to look into the April 14, 2006 police shooting death of Moore indicted Douglas and Zanotti for their decision-making roles in the incident.

Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, brandished a flare gun, threw items out the window of her second-story apartment and threatened to burn the building down during the more than two-hour standoff.

Officers have said they believed Moore put down the flare gun when the decision was made to storm her apartment but, upon entering, SWAT team members said Moore pointed the weapon at them. She was shot nine times.

Nearly two dozen uniformed officers were on hand for Douglas and Zanotti's court appearance, in addition to a handful of Eureka city officials, including Mayor Virginia Bass and City Manager David Tyson. Almost every seat in the courtroom was taken.

The two defendants were briskly escorted through the hallway and into the courtroom prior to the hearing, and left immediately after its conclusion.

Cissna presided over Thursday's hearing, but made clear it is Superior Court Judge John Feeney's case.

”I will not handle this case -- I'm handling the arraignment because my colleague is sick,” Cissna said, adding that he otherwise would disqualify himself, as he has known Douglas for years.

Gallegos' case

Transcripts from the grand jury proceedings, obtained Tuesday by the Times-Standard after Feeney granted the paper's motion to unseal the nearly 2,000 document, indicate Gallegos' case hinges on the SWAT team's decision not to get a Ramey warrant before entering Moore's apartment, and the concept of criminal negligence.

A Ramey warrant is issued before a suspect is charged with a crime, sometimes with the intent to get more evidence on a suspected crime. It is a warrant issued by a judge, and does not require a case to be sent to a prosecutor first.

While instructing the grand jury on how to consider whether to indict Douglas and Zanotti, Gallegos raises the subject of a welfare check, where officers can legally enter a residence to check on a person's well-being.

”If they have to break in your door to get you, we want them to do that,” Gallegos told the jury. “But, if their objective is to arrest an individual or to seize evidence, the United States Constitution puts a requirement on them.”

In this case, Gallegos argues that requirement is a Ramey warrant.

Gallegos also spends a good portion of his instructions to the grand jury going over the concept of criminal negligence.

”A person acts with criminal negligence when he or she acts in a reckless way that creates a high risk of death or great bodily injury, and a reasonable person would have known that acting that way would create such a risk,” Gallegos told the jury.

Gallegos goes on to state his belief that a reasonable person would conclude that sending officers into Moore's apartment would create a “high risk of death or great bodily injury.”

Taking on the concept of exigent circumstances, or the idea that the situation represented a grave and immediate danger to the community, Gallegos tells the jury that the police made a variety of decisions on April 14, 2006 that show that was not the case. Police actions that day, Gallegos argues, show police commanders did not believe the threat of a flare-ignited fire to be grave.

That police set up the SWAT command center in the same building, failed to fully evacuate the building and didn't evacuate adjacent buildings, Gallegos said, shows the police did not perceive Moore as an imminent threat.

”These are things which you can all consider to determine whether they thought there was a risk that this building was going to suddenly burn down and they need to get in there,” Gallegos told the jury. “That is important because if you don't need to suddenly get in there, there are no exigent circumstances.”

Defense attorneys Bill Bragg and William Rapoport were not immediately available for comment.

A police perspective

Police experts interviewed by the Times-Standard offered different opinions on how the circumstances of the Moore standoff played out, and whether commanders should have sought a warrant.

Ronald R. Scott, a former commanding officer of the Massachusetts State Police Ballistics Section who has spent 25 years investigating shootings and police-related shootings, said seeking a warrant may have allowed a higher authority to raise concerns about how police wanted to proceed.

He questioned how concerned police were about a fire and why the SWAT team was ordered into the apartment before negotiations were considered over. Scott said it is impossible to know, however, if the outcome would be any different if a warrant had been obtained.

”I just think it's a small step that could have possibly influenced what the commander on the scene did,” Scott said.

One of the cases Gallegos used in his arguments to the grand jury was a hostage scenario that unfolded in Fortuna in September 2005. Michael Allman was barricaded in his Newell Drive home along with his young son. Fortuna Police first responded, then the Eureka SWAT team arrived, and later the county SWAT team. After about 12 hours, Allman released the boy, but the standoff lasted almost another 20 hours.

Officers were unable to see Allman inside the house, Fortuna Police Chief Kris Kitna testified before the grand jury, and determined it was too dangerous to enter the residence. Sometime after the boy was released, Kitna and other law enforcement officials decided to get a Ramey warrant to enter the house. When the SWAT team went inside, they found Allman dead, shot by his own gun.

Kitna also said there are circumstances in which police can enter without a warrant.

”Certainly we can enter without the warrant under exigent circumstances, when it is life or death or when evidence is being destroyed, but normally you need that Ramey warrant to enter absent any special circumstances,” Kitna said.

The Fortuna case is substantially different than the Moore case, and experts disagree about whether special circumstances existed during the Eureka standoff.

Lou Reiter has been a consultant on police misconduct for 27 years, and is a former deputy chief of the Los Angeles Police Department, now based in Rhode Island. He said the Eureka case is strange because of the criminal charges being brought, and questioned what could be criminal about inadequate supervision. There are civil remedies in those types of cases, he said.

To prosecute the commanding officers, Reiter said, it would seem that the district attorney would have to convince a jury that they directly ordered the SWAT officers to kick in Moore's door and shoot her.

A warrant is not usually obtained in the early hours of a standoff, he said.

”For the most part it's rarely done, particularly when you're dealing with an emotionally disturbed person,” Reiter said.
A legal perspective

University of California Hastings College of Law professor David Levine said he's often heard of similar cases being dealt with in civil and administrative arenas, but criminal charges are a different ball game.

”It just seems to me when it's criminal, you really want to be able to point to chapter and verse and say, 'No good police officer would do X, Y and Z,” Levine said.

The decision not to get a warrant, Levine said, amounts to a judgment call -- one that can certainly be second-guessed, but one that will be hard to prove is a criminal act.

While Levine said it sounds like commanding officers could have better handled the events of that April day, he said the prosecution will likely have to show that the defendants showed a conscious disregard of the risks of their actions -- no easy task. Levine said judgment calls that appear poor in hindsight probably won't cut it.

”Without being an expert in police procedure, it just seems like it's really hard to second guess something like that,” he said.
Levine said it is far more common for officers to be criminally charged when it's clear they acted with malice.

As an example, he pointed to a 1997 New York case where officers were convicted after they pinned down a man in a New York precinct and sodomized him with a broomstick. In that case, two officers were convicted of assault and four were convicted of lying to investigators.

Another example Levine pointed to was a 1999 case where a criminal grand jury returned second degree murder and reckless endangerment indictments against officers who fired 41 shots at an unarmed New York man, hitting him 19 times. Those officers were acquitted of all charges, but the case garnered widespread public outrage.

”Those are the kinds of extreme cases that lead to criminal charges,” Levine said.

University of Nebraska at Omaha Criminal Justice professor emeritus Samuel Walker, an expert on police accountability, said it sounds like officers could have done a lot of things differently, but also questioned whether the case belonged in the criminal arena.
”Criminal conviction of a police officer is very difficult to achieve in any event, unless it's a corruption charge where you can prove that money went from one hand to another,” Walker said.

John Driscoll and Thadeus Greenson/The Times-Standard
Article Launched: 02/22/2008 01:31:03 AM PST

ER - Arraignment continued second time, charges exposed

Arraignment continued second time, charges exposed

The arraignment scheduled on Thursday in the Humboldt County Courthouse for former Eureka Police Department Chief David Douglas and EPD Lt. Antonio Zanotti was continued until April 1.

Their original arraignment date was set for Jan. 1, but it was continued until Feb. 21 — when it was continued again.

When arraigned, defendants are read the charges against them and enter a plea. A not-guilty plea activates a citizen’s right to a trial by their peers.

A Humboldt County criminal grand jury handed up an indictment for Douglas and Zanotti on Dec. 3 — accusing them of involuntary manslaughter — an alleged violation of Penal Code Section 192 (b) — for their leadership roles in the death of Cheri Lyn Moore on April 14, 2006.

Douglas’ attorney, Bill Bragg and Zanotti’s attorney, William Rapoport requested the continuance because they have not received more than 100 exhibits admitted to the grand jury as evidence.

The majority of men and women in the packed courtroom indicated they were in support of the defendants — many wore law enforcement uniforms with some displaying badges.

EPD Sgt. Steve Watson was present during Moore’s death and said he was in court to support the defendants.

Speaking for all the uniformed officers he said, “They have our absolute support — without a doubt.”

Presiding Superior Court Judge Timothy P. Cissna granted the continuance to give the defense time to review all the evidence.

Deputy District Attorney Maggie Fleming — representing District Attorney Paul Gallegos — did not object.

EPD Chief Garr Nielsen said he doesn’t think the case will make it trial. “I don’t believe that the case is strong enough to warrant going to trial,” he said.

The judge may throw the case out at any time.

Transcripts from the grand jury investigation — unsealed Tuesday — include more than 1,600 pages of testimony that took place over about 10 days last fall.

Nielsen said he agreed with the defense who argued Tuesday against unsealing the portion of the transcripts where Gallegos’ instructed the jury and explained how the law applies.

Bragg wrote in a court document, “Coverage of erroneous statements of the law given by the district attorney without immediate and accurate rebuttal from an authoritative figure could very well impact my client’s ability to get a fair trial in his community.”

In a grand jury proceeding, the jury does not hear from the defense council.

According to the transcripts, Gallegos alleged that Douglas and/or Zanotti committed three acts with criminal negligence and two crimes.

The first act allegedly committed with criminal negligence, was failing to adequately supervise or direct the EPD SWAT team members in relation to Moore — a barricaded subject.

The second act alleged against the defendants is failing to adequately supervise the EPD Crisis Negotiation Team.

The third states that they failed to provide adequate communication between the EPD, SWAT and CNT — to enable them to plan and/or prepare how to respond to Moore.

Gallegos explained that a person acts with criminal negligence when their actions are so different from the way an ordinarily careful person would act in the same situation that his or her acts amount to a disregard for human life or indifference to the consequences of
that act.

The first alleged crime reportedly committed by the defendants is unauthorized destruction of property — a misdemeanor under California Penal Code Section 603.

According to the transcripts, “(It applies) to every person, other than a peace officer engaged in the performance of his duties as such who forcibly and without consent ... enters a dwelling house ... and who damages, injures or destroys any property of value in, around or appertaining to such (a) dwelling. ...”

The second alleged crime is reportedly home invasion, PC 602.5 (a). “(The law states) every person other than a public officer or employee acting within the course and scope of his or her employment in performance of a duty imposed by law, who enters or remains in any ... residential place without the consent of the owner ... or the person in lawful possession thereof is guilty of a misdemeanor.”

“The question is not whether the officers had other alternatives available to them; it is whether or not the officers acted reasonably,” Gallegos told the grand jury, according to the transcripts.

All of the grand jury members had to agree that at least one act was committed to issue an indictment — and jurors had to be in agreement about the same act or acts.

By EMILY WILSON, The Eureka Reporter
Published: Feb 21 2008, 11:34 PM · Updated: Feb 22 2008, 12:10 AM

2.21.2008

TS - Commanders' arraignment in Moore case continued

Commanders' arraignment in Moore case continued

Superior Court Judge Timothy Cissna agreed today to continue the arraignment of former Eureka Police Chief David Douglas and Lt. Tony Zanotti on involuntary manslaughter charges until April 1.

Deputy District Attorney Maggie Fleming said District Attorney Paul Gallegos and the defense agreed to the continuation before Thursday's arraignment hearing to allow the defense time to receive and review copies of the evidence exhibits presented during the criminal grand jury proceedings.

Fleming said both sides agreed on the April 1 date.

The District Attorney's Office officially announced on Dec. 3 that a criminal grand jury convened to look into the April 14, 2006 police shooting death of Cheri Lyn Moore handed up indictments stemming from Douglas and Zanotti's decision-making roles in the incident.

Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, brandished a flare gun, threw items out the window of her second-story apartment and threatened to burn the building down during the more than two-hour standoff.

Officers have said they believed Moore had put down the flare gun when the decision was made to storm her apartment but, upon entering, SWAT team members said Moore had the weapon pointed at them. Moore was shot nine times.

The Times-Standard
Article Launched: 02/21/2008 02:25:58 PM PST

ER - Gundersen case headed to trial

Gundersen case headed to trial

By EMILY WILSON, The Eureka Reporter
Published: Feb 21 2008, 1:01 AM

An hearing took place Wednesday for Blue Lake Police Chief David Ray Gundersen, in the Humboldt County Courthouse.

In a closed courtroom, a preliminary hearing date of Feb. 27 at 8:30 a.m. was confirmed. Deputy District Attorney Kelly Neel represented the prosecution, expected to be personally led by District Attorney Paul Gallegos.

Gundersen — still in custody with a $500,000 bail — was not present. His attorney, Russell J. Clanton of the Arcata-based firm, Russell J. Clanton and Associates was represented by a member of the firm, attorney Benjamin Okin.

Gundersen has been charged with 12 felony counts of Penal Code 262 (A)(2), and one count of each PC 136.1 (B)(1), PC 166 (A)(4), and BP 4060.

In non-legal terms, he is accused of raping his spouse — on 12 occasions throughout the past year — with an intoxicating or anesthetic substance.

Additionally, Gundersen is charged with one felony count of dissuading or preventing a witness or victim from testifying, possession of a controlled substance without a prescription and willful disobedience of the terms of a court process or court order.

At the preliminary hearing, the prosecution will present evidence — which may include witness testimony — to persuade the judge that there is probable cause for a trial.

As recently reported in The Eureka Reporter, Gallegos said he will present a recording of the alleged victim’s statement at the hearing.

Questions continue to surround as to who accused Gundersen of raping his wife, but it’s likely they will be cleared up Feb. 27, if not sooner.

In a previous interview, Gallegos said the District Attorney’s Office can only act on an a crime if it was alleged by the victim.

Clanton said — also in a previous interview — that he believes the accusations are rooted in a custody battle that Gundersen has been fighting with his former wife for nearly 10 years.

Gundersen’s wife was present in court at a bail hearing last week, where she confirmed she was there to support her husband.

As previously reported, Gallegos said, “you can’t prove a case without a victim.”

TS Cheri Lyn Moore case: What the grand jury heard

Cheri Lyn Moore case: What the grand jury heard
John Driscoll/The Times-Standard
Article Launched: 02/21/2008 01:27:27 AM PST

The volatile chain of events leading to Cheri Lyn Moore's death in 2006 at the hands of Eureka police is laid out in transcripts of the grand jury proceedings held in November and December, which led to involuntary manslaughter charges against the commanding officers.

One of the leading officers on the SWAT team that stormed into the 48-year-old woman's apartment on April 14, 2006, told grand jurors that plans to handle the tense situation were still being developed when orders were given to move in.

Eureka Detective Todd Wilcox said four initial plans had been generated to deal with the circumstances most likely to arise during the early part of the standoff in which Moore brandished a flare gun. Wilcox was pulled back to the command post in the building just before the SWAT team entered, a little more than two hours into the standoff.

While the team began to formulate plans to better communicate with Moore, a spotter across from her apartment at 516 G St. said Moore had put down the gun, Wilcox said.

That signal was agreed upon as the order to go, he said. The officers used a battering ram to smash in the door, Moore pointed the flare gun at them and was shot to death, according to testimony.

An expert witness testifying on behalf of accused commander Lt. Anthony Zanotti called it a “clear case of suicide by cop.” George Williams testified that Moore's threats and actions leading up to her death are typical of someone intentionally drawing police to a scene and acting in a criminal manner that makes police use deadly force.

Moore was despondent on the anniversary of her son's suicide, had called mental health workers and police, told them she had a flare gun and threatened to blow up the building, Williams said.

”Because when a reasonable person presented with overwhelming force gives up,” Williams answered Humboldt County District Attorney Paul Gallegos, “and she intentionally arms herself and causes this shooting, that's suicidal, sir.”

Wilcox had been to the apartment four days before for a welfare check on Moore, who made unspecified threats that she might burn down the building or a church. He and another officer had pounded on Moore's door, but ended up leaving without incident.

When Gallegos asked Wilcox what was different about how police responded on those two days, Wilcox said Moore had threatened to burn down the building and had pointed a weapon -- the flare gun -- at officers on April 14.

He described those as “exigent circumstances,” that warranted entry into Moore's apartment. Police weren't trained to deal with a fire that might have broken out if the flare gun had been fired, Wilcox said, and he also testified he wasn't entirely confident that firefighters could have responded and doused a fire, either.

Wilcox explained how SWAT officers generally “stack” before entering a residence or room. The first breaches the door, then moves out of the way for officers carrying guns, followed by officers with less-lethal weapons. The reason for this is to ensure that the first officers can respond with deadly force if they are faced with deadly force, he said.

Officer Rocky Harpham was the first man to enter the apartment, carrying a 12-gauge shotgun. Harpham testified that he moved in and saw Moore in the room with her back to him, and the weapon -- the flare gun -- sitting on a table or shelf. He yelled for her to put her hands up, he said. Moore turned around with a look of shock on her face, he testified.

”She picked up the weapon and she started to bring it up to where she could point it at the direction of myself and the rest of the team and when she started to bring the weapon across towards me that is -- or towards where I was at, that is when I began firing,” Harpham testified.

Harpham said that he believed Moore would shoot him and that he had no other option but to shoot.

Harpham and officers Mike Johnson, Rodrigo Sanchez, Tim Jones and Terry Liles were the officers who initially entered Moore's apartment. None of them were indicted by the grand jury, and testified under protection of immunity in the proceedings.

Wilcox also answered Gallegos about the threat of fire to the building. If the threat of fire was so grave, Gallegos asked, why was the SWAT command center set up in the same building? Wilcox answered that it was probably lack of foresight.

Gallegos repeatedly questioned officers and police negotiators about their attempts to contact Moore. Moore had music blaring in the apartment much of the time, and law enforcement repeatedly tried to get her to answer the phone and hold a conversation.

Officers testified that they held a discussion about whether to cut power to the apartment, but decided against it, since it was believed her phone was cordless and required electricity. Gallegos also asked whether commanders considered using a “throw phone” -- a special phone provided to a suspect during negotiations -- or the PA systems on police vehicles to communicate.

County Health and Human Services Director Phil Crandall testified that police never asked for assistance with the situation, but also said there was no mechanism in place to get mental health workers to the scene.

While the building was largely evacuated that day, one neighbor of Moore's was believed to be too sick to be taken out, and remained inside with two female caretakers during the incident. Another witness, neighbor Jeffrey John Hemsted, testified that he was never asked to leave by police, or told there was a threat of fire.

Eureka Fire Capt. Patrick Joseph Lynch told the grand jury that a fire crew had staged a block and a half away, and had been told there was a possibility that a gas line had been broken in the apartment, which could have had dire consequences if Moore had discharged the flare gun.

John Driscoll can be reached at 441-0504 or jdriscoll@times-standard.com.

TS - Douglas, Zanotti set to be arraigned today in Moore shooting

Douglas, Zanotti set to be arraigned today in Moore shooting
Kimberly Wear/The Times-Standard
Article Launched: 02/21/2008 01:32:00 AM PST

District Attorney Paul Gallegos' involuntary manslaughter case against the two officers in charge when Cheri Lyn Moore was killed hinges on whether they should have obtained a warrant before a SWAT team was ordered into her apartment, according to recently unsealed grand jury transcripts.

Gallegos told the grand jury that former Eureka Police Chief David Douglas and Lt. Tony Zanotti ordered an illegal entry into the apartment, and acted with criminal negligence by failing to “adequately supervise” police, SWAT team members and the negotiation team during the April 14, 2006, standoff.

Douglas and Zanotti are scheduled to be arraigned today on charges of involuntary manslaughter.

In order to hand up an indictment of involuntary manslaughter, Gallegos said 12 of the 18 grand jurors needed to find that Douglas and Zanotti committed at least one of those acts. There was probable cause to indict them if there were no exigent circumstances, that it was an unlawful entry and that the entry resulted in Moore's death, Gallegos said.

”Was -- were the acts of Lt. Zanotti and Dave Douglas criminally negligent? This is not standard negligence, civil negligence, you made a mistake,” Gallegos said. “You made a real bad mistake. Criminal negligence is a whole different animal. It is a disregard.”

Moore, who had a history of mental illness, was shot by Eureka police officers in her apartment at Fifth and G streets after a two-hour standoff in which she brandished a flare gun, threw items from her apartment and threatened to burn the building down.

Police have said they believed Moore had put down the flare gun when the decision was made to storm her apartment. When officers came face to face with Moore, who they say had a flare gun pointed at them, they shot her multiple times.

Superior Court Judge John Feeney ordered the transcripts unsealed Tuesday at the request of the Times-Standard, which argued the nearly 2,000 pages of grand jury testimony should be made public.

At the court hearing, attorneys for Douglas and Zanotti said they were open to handing over most of the testimony, but requested nearly 60 pages of Gallegos' instructions and summation be redacted because “in our opinion he horribly misinstructed the grand jurors.”

Feeney ruled in favor of the Times-Standard, opening the entire transcript.

The documents, made up of five sections, cover about 10 days of testimony, Gallegos' closing argument and jury instructions.
In his last words to jurors, Gallegos raised questions about how dire the Moore situation was, why her building and surrounding businesses weren't completely evacuated, whether enough efforts were made to contact Moore or time given to explore options other than storming her apartment after a little more than two hours.

”This is the life and safety of citizens in this community,” he said. “I am not asking you to hold these officers to a standard of perfection. I believe the evidence establishes that -- I believe there is certainly evidence that belies the claim that there was a fear that this building was going to burn up if they did not act.”

Gallegos also compares the Moore case to a Fortuna standoff that lasted 32 hours, saying Fortuna Police Chief Kris Kitna delayed entry, evacuated the surrounding area and obtained a Ramey warrant before entering the house where a hostage had been held by Michael Allman.

”They use gas. They break windows. They use shields. They use a PA system. I can't recall whether Chief Kitna indicated whether he tried to use the throw phone or not. It was a process that lasted 32 hours,” Gallegos said.

”There is something for us to consider, to look at to see what reasonable people do, what a standard might be. It is a double-edge sword though, because what else do we know? We know that Chief Kitna with the Eureka Police Department and the Sheriff's Department and -- they were there for 32 hours or roughly 32 hours, and what happened? Mr. Allman ended up dead,” he said.

The transcripts show jurors handed up the involuntary manslaughter indictment on Dec. 3.

Kimberly Wear can be reached at 441-0507 or kwear@times-standard.com.

Ramey warrant
A Ramey warrant is issued before a suspect is charged with a crime, sometimes with the intent to get more evidence on a suspected crime. It is a warrant issued by a judge, and does not require a case to be sent to a prosecutor first.
A Ramey warrant differs from an arrest warrant. An arrest warrant is issued by a judge after felony or misdemeanor charges have been filed. That means there must be enough evidence for a district attorney or city attorney to file a complaint, and the judge agrees there is probable cause.

BOX:
Unsealing the transcripts

The shooting death of Cheri Lyn Moore by Eureka police on April 14, 2006, rocked the community.

From the beginning, the Times-Standard believed that the case held enormous importance to the public. The newspaper exclusively videotaped the coroner's inquest that looked into her death in an effort to air as much information as possible.

When Humboldt County District Attorney Paul Gallegos announced he'd be taking the case to the grand jury, we petitioned Gallegos to ask the judge to open the proceedings to the public. He argued for that in court, but was turned down by jurors, who needed to approve an open session along with a judge.

When former Police Chief David Douglas and Lt. Anthony Zanotti were indicted by the grand jury, the Times-Standard immediately moved to have the transcripts of the proceedings released, a process that included several hurdles. In the beginning, court officials refused to acknowledge the existence of the case or that an open hearing had been held until the paper directly petitioned Judge John Feeney.

The Times-Standard's legal efforts were led by Roger Myers and his associates at the Holme Roberts & Owen law firm in San Francisco. Myers, a former reporter and editor, is one of California's leading First Amendment lawyers, and is general outside counsel for the California First Amendment Coalition.
The paper was blocked from receiving the records by Douglas and Zanotti's defense team. After repeated motions, the defense largely conceded to our position, and Feeney released the transcripts in their entirety.

'Right to know': Not just words

'Right to know': Not just words'Right to know': Not just words
Times-Standard
Article Launched: 02/21/2008 01:32:01 AM PST

The Times-Standard is gratified that Superior Court Judge John Feeney on Tuesday upheld the First Amendment and its counterpart in the California Constitution that say court records are presumed to be open to the public unless they are expressly ordered sealed under strictly defined legal tests.

After a legal back-and-forth dating back to last year, when a criminal grand jury handed up indictments of former Eureka Police Chief David Douglas and Lt. Anthony Zanotti in the Cheri Lyn Moore shooting case, Judge Feeney found for the Times-Standard and released the transcripts of the testimony and deliberations. Still to be released, pending review by defense counsel, are a video of the hearing and exhibits that were presented.

The lawyers for Douglas and Zanotti were within their rights -- and indeed probably were obligated to their clients -- to argue that release of the transcripts might taint the jury pool, should the case go to trial. The Times-Standard argued, and the judge agreed, that the defense had not offered any basis for concluding that sealing or redacting testimony and arguments would threaten chances for a fair trial.

Making a stand for freedom of information can sometimes be costly, but it's a duty that the American press has been proud to exercise for more than 200 years, and we hope it will always do so.

It's fitting that this decision in Humboldt County comes just before Sunshine Week, March 16-22, a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include not only print, broadcast and online news media, but also civic groups, libraries, non-profits, schools and others interested in the public's right to know.

Open government is important to liberals, conservatives and everyone in between, for without the free flow of information, the democratic system cannot work.

In Humboldt County this week, it worked.

2.20.2008

Major Dos Rios pot bust

Major Dos Rios pot bust

A multi-agency task force led by the County of Mendocino Marijuana Eradication Team raided a major indoor pot grow at a Dos Rios ranch in the mountainous area above the confluence of Outlet Creek and the Eel River just after dawn on February 13. Six men and one woman were arrested, three children are in the custody of Child Protective Services, and agents seized 100 pounds of processed marijuana, $20,000 in cash, two pistols and seven rifles, and eradicated 5,275 pot plants from seedlings to mature plants in full bud during the raid.

The raid involved law enforcement officers from COMMET, Sonoma County Marijuana Eradication Team, the U.S. Drug Enforcement Agency and the California Bureau of Narcotics Enforcement Redding Task Force. The raid resulted from an ongoing investigation, according to police.

As officers arrived at the property suspects were spotted fleeing the scene. One group fled on foot and another was seen traveling down a rough dirt trail toward the Eel River in a Jeep.

The helicopter supporting the raid spotted the Jeep abandoned near the river and helped officers locate two suspects Kite Isaac Finds the Feather and Amanda Lee Wood and three children ages 6, 5 and 2.

According to deputies, Finds the Feather and Wood had fled the residence in the Jeep with the children riding unrestrained in the back of the vehicle along the primitive track, through downed trees and over rough terrain.

"It was fortunate this case did not turn into a tragedy and the suspects were found with the children safe. The way they fled placed the children in danger had the suspect lost control of the Jeep on the road," says sheriff's Lt. Kurt Smallcomb.

The children were given warm clothing before being transported by helicopter to CPS. When found, the children were dressed lightly in short sleeved shirts despite the cold temperatures, say police,

When the suspects were taken into custody, Finds the Feather attempted to hide a loaded handgun at the scene, say police.
Finds the Feather and Cook were arrested on suspicion of cultivation and possession of marijuana for sale, child endangerment and being armed in the commission of a felony and are being held on $500,000 bail.

Finds the Feather is one of the founders of Mendo Maté, according to a Mendo Maté marketing spokesman. The spokesman refused to comment on Finds the Feather's current role, if any, with Mendo Maté unless he had a lawyer present.

Two main buildings at the ranch were used for growing plants, say police. One served as a starter room and processing building and the other as the main grow area. About 271 grow lights were found powered by generators. Two generators, a 400 and a 350 kilowatt unit, powered the operation. The diesel supply for the generators was stored in a plastic water tank and at least 25 gallons of waste oil was found at the scene. Mendocino County Environmental Health inspectors are reviewing the site for contamination caused by the operation.

"It was one of the most extensive grows I've seen," says Lt. Rusty Noe.

One man was spotted by deputies walking on Highway 162 near the bust following the raid. Romero Juan Agudo was questioned by police and advised there were seven men working and living at the site. Agudo, 24, was arrested on suspicion of cultivation of marijuana for sale.

Evidence found during the raid then led deputies to Antonio Alfonso Agudo, 21, whose wallet was found on the scene, and to the arrest of Agudo; Lucha Lorenzana, 21; Aristeo Hernandez Hernandez, 49; and Nacario Lopez-Cruz, 42, on suspicion of cultivation of marijuana for sale.

All five are believed by law enforcement to be Mexican nationals and are now in Mendocino County jail on immigration holds with no-bail status.

By Linda Williams/TWN Staff Writer (The Willits News) http://www.willitsnews.com
Article Launched: 02/20/2008 11:00:05 AM PST

2.18.2008

McK Press - Falor Accuses County of Grand Jury Meddling

By Daniel Mintz - Press Staff Writer - 2/19/08

One of the thorniest situations in county government has gotten more so, as former County Counsel Tamara Falor is alleging that Grand Jury investigations into her resignation and $289,000 damage claim settlement have been manipulated by county employees and officials.

Falor filed another claim against the county on Dec. 24 that asserts she had suffered damage to her reputation, violation of her privacy rights, negligent and intentional emotional distress, defamation and other injuries. A damage payment amount isn't specified.

The claim was rejected by the county because it was not filed within six months of the alleged offenses. An application to file a late claim, received Feb. 1, was denied by the county on Feb. 7. If Falor decides to press her allegations, she can do so through a lawsuit.

The crux of Falor's claim is that a June 2007 Grand Jury report on its investigation into the controversial settlement was intentionally led astray by county officials - including current County Counsel Wendy Chaitin. The claim describes Chaitin as someone who "had an involvement" in the situation that led to Falor's "separation" from county work. And Falor's claim states that this year's Grand Jury - which is completing the investigation - submitted a letter of recommendation supporting Chaitin's "quest to be appointed as county counsel." Sources say the letter exists and was submitted to the Board of Supervisors in late November.

Falor also alleges that the Grand Jury was improperly given advice by members of the County Counsel's Office. "These members have conflicts of interest in this matter, some of which may rise to the level of a pecuniary (personal or financial) interest," the claim states.

The application to file a late claim attributes advice - and a pecuniary interest - to "a county legal representative having involvement in the matter." The Grand Jury was advised that Falor was "not able or willing to testify" and that "the statement the Grand Jury published was not defamatory," according to the claim, which also alleges that the representative "signed off" on the Grand Jury report.

Matt Morehouse, the foreman pro tem of last year's Grand Jury and the foreman of this year's, said no one from the County Counsel's Office has given advice. "The County Counsel's Office at all times refrained from commenting on anything to do with the Falor case - and they still do," he said.

Asked who had legally advised the Grand Jury, Morehouse said it "received no legal advice on this matter." He declined comment when asked if this year's Grand Jury is being advised.

Morehouse declined comment on other aspects of the claim.

The claim also refers to pre-settlement circumstances. It states that Falor "is informed and believes" that one or more county officials "used their positions" to obtain the unsigned settlement agreement and "then disclosed that information." In a letter sent to the county's outside attorney last December, Falor's former lawyer, Wendy Wyse, said that the unsigned settlement document was released to a deputy county counsel. County officials have said that the counsel's office was not involved in the settlement dealings or the Grand Jury probes.

Names of people listed as being responsible for Falor's injuries include Chaitin, former Interim County Counsel Ralph Faust, "certain employees of the County Counsel's Office" and supervisors John Woolley, Bonnie Neely and Jimmy Smith. All three supervisors had voted to appoint Chaitin, who is considered an interim counsel but will be evaluated for permanent appointment.

The claim lists "other county employees and representatives who published and/or released information about Ms. Falor in violation of her rights" as well. Also included are members of the 2006-07 Grand Jury, and the "county employees which led the members... to publish defamatory information about Ms. Falor."

Tainted findings?

Last year's Grand Jury concluded that supervisors approvedthesettlement "secretly and quickly," and "there was considerable written evidence and oral testimony to the effect that Ms. Falor's job performance had been less than satisfactory for several years."

The Grand Jury report also asked why Falor wasn't fired and whether her job performance had been adequately evaluated. The unfinished investigation was handed off to this year's Grand Jury - and Falor has given testimony. But her application to file a late claim outlines alleged problems with the follow-up process, including the Chaitin recommendation letter.

The claim also states that a letter was sent by the current Grand Jury to the Board of Supervisors, informing that one witness - which would be Falor - had testified and "if the board persisted in not testifying, a one-sided report would issue." The claim objects that "no similar letter was sent to claimant before the 2006-2007 Grand Jury issued a one-sided publication from an incomplete investigation that was defamatory to the claimant."

It also gets more specific on some aspects of last year's probe, saying that "defamation and violation of (Falor's) right to privacy were perpetrated by two members of the County Counsel staff, through their testimony to the Grand Jury."

According to the 2006-07 Grand Jury report, testimony was given by the two unnamed county counsel staffers, all five members of the Board of Supervisors and "three other county officials." The report states that "no supervisor or anyone else with detailed knowledge of this incident would reveal the exact reason Ms. Falor was awarded $289,000."

But the claim asserts that one or more members of the Board of Supervisors had "off the record" contact with one or more members of the Grand Jury to talk about "the substance of the matter involving (Falor)."

Responding to the county's assertion that the Dec. 24 claim was untimely, the late claim application states that "It is not reasonable to expect the claimant could have anticipated that county legal representatives would have exerted such extraordinary influence on the Grand Jury process."

Escalating division

The contents of the recent documents likely relate to the situation that led to the controversial settlement.

Falor's absence from her post near the start of 2006 provoked lots of speculation. Sources say management/staff tension within the Counsel's Office had intensified and a letter complaining about Falor was signed by most of the members of the office's staff, including Chaitin.

Sources say the staff complaints were brought to the attention of Supervisor John Woolley during a meeting with him and that the complaint letter was submitted to the Board of Supervisors. And eventually, the county sought outside legal advice on how to fire Falor. Related billing by a Los Angeles law firm began Jan. 3, 2006.

But Falor also took action. By the end of January, the county had received her claim for damages related to things that happened between Nov. 6, 2006 and Jan. 7, 2007. The nature of the claim wasn't specified. Instead, it cited the six general categories open to damage claims, which include defamation,discrimination, harassment, breach of contract and wrongful termination. The claim cited $290,000 as a "minimum" damage amount.

A final agreement on the settlement - and the acceptance of Falor's resignation - was approved by a majority of the Board of Supervisors (Supervisors Jill Geist and Jimmy Smith voted against it) in closed session on March 13, 2006. It concluded a series of Falor-related closed session meetings that began in early January of that year.

Chaitin and County Administrative Officer Loretta Nickolaus both said that that the County Counsel's Office has not advised either the former or current Grand Jury, or supervisors, on the Falor matter. Many of the parties listed in the recent claim were contacted but declined comment.

McK Press - Rape Case Proceeds Against Blue Lake Police Chief

By Daniel Mintz - Press Staff Writer - 2/19/08

Blue Lake Police Chief Dave Gundersen has been charged with drugging his wife to facilitate raping her, but his attorney has said the alleged victim is actually supporting Gundersen's innocence- which the District Attorney's Office attributes to threats and coercion.

Gundersen, a McKinleyville resident, is in jail and charged with 12 counts of spousal rape through use of an "intoxicating substance," and additional counts of witness coercion, violating a court order and possession of a controlled substance without a prescription followed his arrest. He's being held at county jail on $500,000 bail and has pleaded not guilty to all of the charges. Russ Clanton, his Arcata-based attorney, has said that the case is directly related to Gundersen's family court battle with his ex-wife over the custody of their 12-year-old son, who was living with Gundersen and his wife when the alleged crimes happened.

The case against Gundersen began with his arrest by District Attorney investigators on Feb. 8 at the McKinleyville Sheriff's Substation. At a press conference two days later, District Attorney Paul Gallegos said Gundersen's wife, a sergeant in the Blue Lake Police Department, had notified the county Sheriff's Department of the alleged rapes, which the D.A. says span a period from last March to February.

Gallegos wouldn't comment on whether the alleged rapes took place in the home, but he did say some of the offenses may have taken place in Blue Lake. His investigators searched Gundersen's home and seized many items from it, he continued, adding that "it is not unusual for us to seize computers and such, and it is not unusual for us to discover evidence of criminal activity in computers."

But at a press conference the next day, Clanton said the D.A.'s Office "has put their nose into the bedroom of Chief Gundersen and his current wife" and has failed to realize the link to Gundersen's custody battle with his ex-wife. "Allegations have been made to gain advantage in that particular case that are directed tied to the allegations in this case," said Clanton.

A 1999 court report cited by the Times-Standard daily newspaper includes an allegation by Gundersen's ex-wife that he drugged her and raped her. Clanton said Gundersen's current wife is ready to support him in court.

"Her position is that the allegations are untrue, and that the conduct prescribed in the penal code… in fact are not present between she and her husband," he continued.

But in court and in an interview, Gallegos said that taped phone conversations made during Gundersen's jail stay demonstrate that the chief has attempted to coerce the alleged victim into recanting. Referring to Gundersen's wife as Jane Doe, Gallegos said she has been victimized in various ways.

"Jane Doe is the victim, she is the one who came forward to give us information and she is also the victim of an attempt to dissuade," he said.

In a Thursday, Feb. 14, bail hearing, Clanton indicated Gundersen's wife would support his opposition to the charges and that the taped conversations have been misrepresented by the D.A. Asked about that in an interview, Gallegos said the tapes will be further discussed and perhaps played in court during a preliminary hearing, which is set for Feb. 27.

Will Gundersen's wife support his stance in the case? "If that exists, it will be brought up at the preliminary hearing," said Gallegos. "Whether it's convincing is another thing - but it sounds like something the defense would bring up in court."

Gallegos said he's never met Jane Doe, and has only seen her in photographs and videotaped interviews. Gallegos said he couldn't comment on whether Jane Doe has been interviewed since Gundersen's arraignment and bail hearing, but added that "at the preliminary hearing, one would expect more information."

As he did in court, Gallegos asserted that Gundersen should remain in jail. "We think he's a danger to the community and certainly the community includes Jane Doe," he said.
###
One week's coverage:
✓ TS Blue Lake police chief arrested for alleged rape 2/9/08
✓ ER Blue Lake Police Chief arrested on suspicion of rape 2/9/08
✓ TS DA: Allegations stem back a couple years, may have been continual occurrence 2/10/08
✓ ER Blue Lake police chief accused of multiple assaults 2/11/08
✓ TS News spreads quickly in sleepy Blue Lake
✓ KMUD Daniel Mintz interview with Gallegos. Click on KMUD Local News, 6:00 pm edition, Monday, February 11, 2008 6:00 pm
✓ TS No charging decision made in Gundersen case, says DA 2/12/08
✓ TS Attorney: Gundersen claims 'false'
✓ TS Gallegos sticks to his guns regarding investigation into Blue Lake police chief
✓ ER Defense attorney announced for Blue Lake Police Chief 2/13/08
✓ ER Blue Lake residents speak out against police chief 2/13/08
✓ TS Gallegos sticks to his guns regarding investigation into Blue Lake police chief 2/13/08
✓ TS In tense meeting, council puts off action on jailed police chief 2/13/08
✓ TS Gundersen hit with 12 counts of rape
✓ TS Gundersen pleads not guilty to 12 rape charges 2/14/08
✓ ER Police Chief denied release from jail — $500,000 bail stands 2/15/08
✓ TS Judge denies police chief's release 2/15/08
✓ ER Gundersen: No stranger to bumpy roads 2/16/08

BLOGS:
Heraldo - Blue Lake Police Chief Arrested for Rape
The Wasp - Gallegos the Sneak
The Wasp = Correction/Update
The Wasp - Gold stars for Thad and John...but something's amiss
Fred: What???
Fred: Prosecutions
SoHum Parlance - Blue Lake police chief denied OR

BACKGROUND/PAST HISTORY
✓ Legal Defense Fund http://www.porac.org/ldf/articles/february%201%201998.html
Adelanto Showdown: Officers vs Counci February 1998