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