Gallegos offered immunity for shooters' testimony in Moore case
District Attorney Paul Gallegos gave SWAT team members and negotiators “transactional immunity” in order to illicit their testimony in the grand jury proceedings that ultimately lead to the indictment of their commanding officers, sources said this week.
Gallegos officially announced in December that a criminal grand jury had handed up indictments of involuntary manslaughter charges against former Eureka police chief David Douglas and Lt. Tony Zanotti for their decision making roles in the 2006 officer-involved shooting death of Cheri Lyn Moore.
Gallegos did not immediately return calls seeking comment Friday.
A letter addressed to “all police chiefs and sheriffs” from Douglas' defense attorney Bruce Praet, of the Santa Ana firm Ferguson, Praet and Sherman, says Gallegos gave SWAT team members and negotiators “transactional immunity,” the highest form of immunity in state, in order to focus strictly on Douglas and Zanotti.
Current Eureka Police Chief Garr Nielsen confirmed Praet's comments.
Transactional immunity is defined as immunity that protects a witness from prosecution for the offense involved.
”To illicit their testimony, that's what it took,” Nielsen said.
Praet said it was peculiar that Gallegos granted the immunity because if a prosecutor believes a shooting is criminal in nature, he would want to go after everyone involved, including the shooters.
”It's an interesting tactic on Gallegos' part to pit them against their lieutenant and former chief,” Praet said.
University of California Hastings College of Law professor David Levine said he didn't think it was that peculiar, and that prosecutors often use immunity to “use the smaller people to work up to the bigger ones.”
”That's how you crack a big case,” Levine said. “You work from the bottom up.”
But, that this case is being decided in criminal court is extraordinary, Levine said, as opposed to the more customary administrative and civil arenas.
Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, was shot April 14, 2006 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 second-story window and threatened to burn down the building.
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 the flare gun pointed at them, they shot her multiple times.
Praet's scathing letter states the defense team is confident both Zanotti and Douglas will be cleared of all charges, and urges police chiefs and sheriffs not to look at the case as a precedent setter.
”Quite frankly,” the letter states, “we are cautiously optimistic that this is little more than a rogue District Attorney Paul Gallegos who is attempting to advance his own political agenda as there is simply zero evidence to support these charges.”
The letter goes on to state that Gallegos “seems to be pursuing some sort of nonexistent theory of 'vicarious' criminal liability.”
Praet said it was troubling that Zanotti and Douglas were not among the nearly 50 witnesses called to testify during the criminal grand jury proceedings.
”One would think that if one's desire was to present a jury with a full picture of what had occurred, they would want to give the people who are the subject of the indictment the opportunity to present their side of the case,” Praet said. “Obviously, that was not done.”
Levine said it is possible that Gallegos knew Zanotti and Douglas were the targets of the grand jury proceedings from the start, and he didn't call them to testify figuring they would assert their Fifth Amendment rights.
Because Zanotti and Douglas also testified under oath at a coroner's inquest in 2006, Levine said Gallegos could have called Humboldt County Coroner Frank Jager to answer questions about Zanotti and Douglas' testimony at the inquest. A witness list obtained by the Times-Standard did not include Jager among the 47 people called to testify during the proceedings.
Nielsen said he knew early on in the proceedings that the incident's leadership was being targeted, but said he assumed that only meant Douglas.
Careful to say that he believes the indictments are erroneous, and Douglas and Zanotti will be cleared of any wrong doing, Nielsen said he didn't have a problem with leadership being the focus.
”As long as the officers who were involved are acting within policy and at the direction of their commanders, I think appropriately the responsibility ultimately needs to rest with the decision maker,” Nielsen said. “That's as it should be.”
As for Praet's reference to Gallegos as a rogue district attorney with a political agenda, Nielsen said he doesn't think that's the case.
”We're certainly not always going to agree. I don't agree with this ... and I'm sure he doesn't agree with everything I do and they way I run my department. But, I wouldn't characterize him in those terms,” Nielsen said. “The district attorney is an elected official and, as an elected official, he has to manage his agency as he sees fit.”
Thadeus Greenson can be reached at 441-0509 or email@example.com
Sidebar: Transactional Immunity: Immunity from criminal prosecution granted to a witness for an offense related to his or her compelled testimony. It is the highest level of immunity that can be granted to a witness.
It differs from another type of protection afforded to witnesses, known as “use immunity.”
Use Immunity: Immunity granted to a witness in a criminal case that prevents the use of the witness' compelled testimony against that witness in a criminal prosecution. Source: Lawyers.com
Too bad Garr Nielsen fails to grok the situation.
To contribute to the City of Eureka's defense fund for David Douglas:
Send checks made out to the City of Eureka,
with David Douglas written in the “for” line,
to City Hall, 531 K St., Eureka, CA 95502.
Councilman Larry Glass said the checks would only be cashed if needed.