4.02.2008

TS - Officers' arraignment postponed once again

TS Officers' arraignment postponed once again

Officers' arraignment postponed once again

A judge again continued the arraignment of former Eureka Police Chief David Douglas and Lt. Tony Zanotti Tuesday, months after a criminal grand jury indicted the officers on involuntary manslaughter charges stemming from the 2006 shooting death of Cheri Lyn Moore.

Humboldt County Superior Court Judge John Feeney granted a request by the defense to continue the arraignment to April 22, after defense attorneys said they have yet to receive all of the exhibits from the grand jury proceedings.

In asking for the continuance, Zanotti's attorney, William Rapoport, said the defense has received 15 of the 151 grand jury exhibits.

”I have been continuously trying to get from (District Attorney Paul) Gallegos the discovery, which includes but is not limited to the exhibits from the grand jury,” Rapoport told the court, adding that the exhibits were necessary for the defense to prepare its post-arraignment motions.

Gallegos said his office had the bulk of the grand jury exhibits prepared to turn over to the defense.

”Certainly, they are entitled to all the discovery, and we will give it to them,” Gallegos said.

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 from her second-story apartment and reportedly threatened to burn the building down during a more than two-hour standoff with police.

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.

A criminal grand jury convened in November handed up the indictments of Zanotti and Douglas in December, but did not indict any of the officers who fired the fatal shots in the incidents. Those officers were given transactional immunity by the District Attorney's Office.

Commanding officers facing criminal charges for their decision-making roles in a stand-off incident is unprecedented, according to an array of experts in law and police procedure interviewed by the Times-Standard.

A host of uniformed EPD officers and Eureka City staff were on hand for Tuesday's arraignment, showing support for Douglas and Zanotti.

In granting the defense's request for a continuance, Feeney referred to a previous court appearance, when another judge told the defense and the prosecution that all discovery requests must be submitted to the court. Feeney said the court had no record of any such requests or motions.

In response, Douglas' attorney, Bill Bragg, told the court there is a difference between the grand jury exhibits and general discovery -- a court term for the exchange of information between attorneys in a case.

The grand jury exhibits, which include evidence presented to the grand jury by the district attorney and exhibits from the proceedings themselves, are court-controlled, Bragg said, and should be turned over in a timely manner.

”The district attorney has now taken possession of what the court had controlled,” Bragg told the court, raising his voice.

“We're just asking for a continuance because the district attorney said he would do something, and he hasn't done it. If he can't do it, give us the exhibits and we'll do it.”

After the hearing, Bragg elaborated on the importance of the defense receiving the exhibits before the arraignment.

Under law, Bragg said, the defense has 60 days from the arraignment to file motions with the court to dismiss the case, in order to preserve the ability to appeal a judge's decisions on those motions.

Bragg said the defense plans to file at least two motions to dismiss based on the way Gallegos instructed the grand jury, conducted the proceedings and fulfilled his legal obligation to present exonerating evidence during the proceedings.

Bragg said that can't be done until the defense gets the exhibits from the District Attorney's Office.

”We can't fully prepare those motions without seeing everything that went on before the grand jury,” he said.

Gallegos said after Tuesday's hearing that the delay in getting those exhibits to the defense is due to his office's efforts to get the videotapes of the proceedings transferred onto DVD, and his office's desire to turn over all the exhibits at once. The defense should have all the exhibits, Gallegos said, by the end of the week.

In court, after assuring the defense he would provide the exhibits and the discovery in a timely matter, Gallegos asked the court to proceed with the arraignment. Feeney declined, and instead granted the continuance. After the arraignment, Gallegos said he wants the case to move forward.

”I'd like to get going,” he said. “We've accommodated them, we've accommodated them and we've accommodated them. I think it's time to get them arraigned, but I guess that will happen on the 22nd.”

Bragg took issue with his comments.

”He has not accommodated us -- we have not gotten the exhibits,” Bragg said. “The only reason we have asked for a continuance is that the District Attorney's Office has failed to get us those exhibits. This was not a defense-generated request for a continuance.”

Bragg and Rapoport also asked Feeney to order Gallegos' office to turn over the exhibits within the week. Feeney declined that request, and urged the two sides to work things out. If that fails, Feeney said he would be willing to take the matter up again before the scheduled April 22 arraignment.

”I'm confident counsel can work this out without a court order,” Feeney said. “If not, you know where to find me.”

Thadeus Greenson/The Times-Standard
Article Launched: 04/02/2008 02:01:50 AM PDT