6.20.2008

TS - Attorneys asks for Douglas-Zanotti case dismissal

Attorneys asks for Douglas-Zanotti case dismissal

Thadeus Greenson/The Times-Standard
Article Launched: 06/20/2008 01:30:36 AM PDT

TThe defense team for former Eureka Police Chief David Douglas and Lt. Tony Zanotti filed motions this week asking a judge to throw out the involuntary manslaughter case against their clients, stemming from their decision-making roles in the 2006 police shooting death of Cheri Lyn Moore.

In the two separate motions filed Wednesday, defense attorneys argue District Attorney Paul Gallegos improperly represented the law to the criminal grand jury that handed up the indictments and that he failed to present evidence that would have backed up Douglas and Zanotti's decisions that day.

“In this case, the proceeding resulted in a travesty of justice -- a due process violation -- that must be corrected by this court,” one motion states.

Gallegos was not immediately available for comment and the defense declined to discuss the motions. A court hearing is set for July 10.

The grand jury indicted Douglas and Zanotti in December 2007, more than a year and a half after Moore's death. The defendants pleaded not guilty on April 22.

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 of 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 the flare gun down when the decision was made to storm her apartment, but SWAT team members said

Moore pointed the weapon at them when they entered. She was shot nine times.

While Douglas and Zanotti face charges as the commanding officers, none of the shooters were indicted, which many legal and police experts have called unprecedented.

Because criminal grand jury proceedings are prosecution driven, and don't provide defendants with a defense, it is the legal obligation of the prosecutor to present evidence which might show the innocence of the defendants.

In one of the motions filed Wednesday, the defense argues that Gallegos failed to fulfill that obligation.

According to two declarations filed with one of the motions, District Attorney's Office Chief Investigator Mike Hislop interviewed two experts in the field of SWAT team operations and both said they did not believe there was a criminal case against Douglas and Zanotti.

Neither expert was called to testify before the grand jury.

According to the motion and accompanying declaration, Stuart Meyers is the CEO of OpTac International and president of Operational Tactics, a nonprofit organization that manages law enforcement instructors and consultation services. It was selected to train the SWAT and sniper teams for the 2002 Salt Lake City Olympics.

According to Meyers' declaration, after being briefed on the events surrounding Moore's death in a June 2007 phone conversation, Meyers told Hislop he did not believe there was a basis for criminal liability. Hislop never contacted Meyers again, according to the declaration.

EPD Sgt. William Nova, who was the SWAT team commander in April 2006 but was off-duty at the time of the Moore shooting, states in a declaration that he had a similar conversation with Hislop.

In his declaration, Nova states that Hislop told him he felt the shooting of Moore was legally justified, and that he was trying to persuade Gallegos not to bring the matter to the grand jury.

”I advised Mr. Hislop that I agreed with him, and that in my capacity both as the Eureka Police Department SWAT commander and as an uninvolved party, I believed that there had been no violation of law, policy or current SWAT practices with regard to anything that had been done in connection with the Moore incident,” Nova states in the declaration.

Nova said he would have given the same testimony before the grand jury had he been called.

Gallegos did call police training specialist George Williams to the stand as an expert witness at the request of Zanotti's attorney. Williams testified that Moore's death was a clear case of “suicide by cop,” and that the SWAT operation had been handled properly.

Gallegos questioned Williams' qualifications as an expert before the jury, saying he had 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,” Gallegos told the grand jury.

The other defense motion filed Wednesday targets the pillars of Gallegos' involuntary manslaughter case: that Douglas and Zanotti acted with criminal negligence and that, in entering Moore's apartment without a Ramey warrant, officers committed an unlawful act that led to Moore's death.

In the motion, the defense argues the Ramey warrant wasn't required in the Moore situation because clear exigent circumstances existed, namely that Moore posed an immediate threat to herself and the community that necessitated prompt action.

A lack of a Ramey warrant, the motion states, has never been applied to create criminal liability for officers entering a home to make an otherwise lawful arrest.

The defense further argues that there is no causal connection between the unlawful act -- the lack of a warrant -- and Moore's death. Had the officers obtained the warrant, the defense argues, the situation likely would have reached the same end.

The defense motion also takes aim at the prosecution's claim that Douglas and Zanotti acted in a criminally negligent manner by failing to adequately supervise the SWAT and crisis negotiation teams, and the communication between the two.

Not only does the evidence show that both teams, and the communication between them, was supervised, the defense argues, but Gallegos also failed to provide the grand jury with a benchmark of what constitutes “adequate supervision.”

In the motions, the defense also argues that Gallegos improperly and inadequately instructed the grand jury on the law.

”There were numerous serious errors and omissions in the prosecutor's instructions to the grand jury in this case; together and separately, they permitted the grand jury to indict on a legally improper basis and on less than probable cause,” the motion states.

The defense also argues that Gallegos failed to instruct the jury on justifiable homicide as an absolute defense to manslaughter and that, by presenting SWAT team members with immunity agreements that were known to the jury, Gallegos implied they were somehow guilty of committing a crime and that, by extension, so were their commanding officers.

Further, the defense argues in the motions that if the court finds legal fault with one of Gallegos' theories -- either of criminal negligence or the commission of an unlawful act leading to Moore's death -- it is obligated to throw out the entire indictment.

The motion states “where a court finds that one of the two alternate theories of guilt is legally unavailable, and there is no means by which to determine whether or not a conviction was predicated on that theory, the convictions must be reversed altogether.”

If a judge denies the defense motions, which are scheduled to be heard July 10, it would still have an opportunity to appeal them to another court before a trial takes place because the motions were filed within 60 days of Douglas and Zanotti's arraignment.

Moore case at a glance
The incident
Cheri Lyn Moore, who had a history of mental illness, was shot and killed by Eureka police officers in April 2006 after a two-hour standoff that saw her brandish a flare gun, throw items from her second-story window and threaten to burn down the building.

The indictments
A criminal grand jury handed up the indictments after hearing several days of testimony, according to the district attorney's office. The proceedings are held in secret, although a judge can allow the sessions to be open to the public upon the request of the district attorney.

In the grand jury process, because the role of the 19 members is only to determine probable cause to bring an indictment, it is not required for them to hear all the evidence. It is left to the “good faith of the prosecutor to present conflicting evidence,” according to the American Bar Association. A minimum of 12 of the jurors must approve indictments.

Grand jurors are chosen from the same pool as other trials.

The charges
Former Eureka Police Chief David Douglas and Lt. Tony Zanotti are each facing a felony charge of involuntary manslaughter, the unlawful killing of someone during a crime, or a legal act that leads to a death -- but one that is done negligently. If convicted, the charges carry a sentence of up to four years in prison.

The defendants
David Douglas: Former Eureka police chief, who has since retired. He testified at a coroner's inquest looking into the death of Cheri Lyn Moore that he did not take over command at the scene, but was ultimately responsible.

Lt. Tony Zanotti: A current member of the Eureka Police Department. Zanotti was the incident commander at the Moore standoff.

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