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