8.22.2008

TS - Douglas-Zanotti defense: DA misrepresented the law

☛ TS Douglas-Zanotti defense: DA misrepresented the law

The district attorney misrepresented the law and failed to provide evidence of former Eureka Police Chief David Douglas' and Lt. Tony Zanotti's innocence during a criminal grand jury inquiry into the 2006 shooting death of Cheri Lyn Moore, defense attorneys argued in court documents filed Thursday.

The commanding officers were indicted on involuntary manslaughter charges in December, which the defense is asking a Humboldt County Superior Court judge to dismiss.

”Our judicial system stands as a real and necessary check on the grand jury indictment process,” one of the documents states. “This court has the authority and the means by which to halt this prosecution, which is justified neither by the undisputed facts, nor by the law.”

Superior Court Judge John Feeney is scheduled to hear oral arguments on the motions Aug. 26.

If Feeney denies the motion to dismiss, the defense has the opportunity to appeal that decision to another court.

Similarly, if Feeney dismisses the charges facing Douglas and Zanotti, District Attorney Paul Gallegos has said he would have the opportunity to refile the charges and allow a judge to determine if there is enough evidence for a trial.

The defense filed two separate motions for dismissal June 18, arguing Gallegos improperly represented the law to the criminal grand jury that handed up the indictments and that he failed to present the jury with 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 countered in court papers that he fulfilled his duty to provide the grand jury with evidence that could have shown Douglas' and Zanotti's innocence. He claimed the defenses' legal citations don't apply, and that there was no immediate danger to justify the commanders ordering a warrantless entry into Moore's home.

”It was reasonable to conclude that, after reviewing the evidence, the grand jury determined that there was insufficient exigency to justify a warrantless arrest,” Gallegos wrote. “A review of the evidence presented to them will show that such a conclusion was supported by the evidence and was not an unreasonable conclusion for them to arrive at.”

The grand jury indicted Douglas and Zanotti more than a year and a half after Moore's death. The defendants pleaded not guilty on April 22. None of the shooters were indicted, which many legal and police experts have called unprecedented.

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 Eureka apartment and threatened to burn down the building during the more than two-hour standoff in April 2006.

Officers have said they believed Moore had put down the flare gun when the order was given to storm her apartment. But a SWAT team member said when officers breached her apartment door, Moore picked up the flare gun and pointed it at them. Moore was shot nine times and died at the scene.

In the documents filed Thursday, the defense argues there were clear exigent circumstances that caused the commanding officers to order the warrantless entry into Moore's apartment and that the officers were acting within their scope of duty. Further, the defense argues, the prosecution didn't provide “one iota of evidence suggesting the defendants were acting in bad faith.”

”In our case, Ms. Moore not only remained dangerous during the entire standoff, she became increasingly so,” one of the documents states. “At no point during the standoff did the danger posed by her behavior dissipate.”

Defense attorneys also argue that Gallegos failed to provide the grand jury with testimony that would have supported decisions Douglas and Zanotti made that day.

In separate declarations attached to the court filings, EPD Lt. Murl Harpham, Sgt. William Nova and expert witness Stuart Meyers state that they told DA investigators they believed the commanding officers handled the incident appropriately and they saw no criminal culpability.

Meyers and Nova also take issue with a declaration by DA Investigator Mike Hislop filed with Gallegos' opposition to the motions for dismissal.

Nova claims that Hislop's declaration misquotes him as being critical of how the incident was handled, when he believes it was handled according to procedure.

Douglas himself also submitted a declaration along with the court documents stating that he told DA investigators he would testify before the grand jury, but that he was never asked to do so.

The defense says it is not asking the court to make a decision on the facts in the case, but rather whether the facts provide probable cause that the defendants broke the law.

”The people have acknowledged that the facts of our case are undisputed,” one of the documents states. “Hence the court should exercise its discretion to find exigent circumstances as a matter of law. It would be a serious miscarriage of justice to force the defendants to trial given the clear presence of exigent circumstances.”


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

Thadeus Greenson/The Times-Standard
Article Launched: 08/22/2008 01:27:27 AM PDT

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