11.15.2008

TS - Gundersen files motion to toss convictions 11/13/08

☛ TS Gundersen files motion to toss convictions

Former Blue Lake Police Chief David Gundersen's attorney filed a motion Wednesday challenging 13 of his client's 14 convictions.

The seven-page motion alleges that jury errors, insufficient evidence, issues with statutes of limitations and improper argument and questioning by District Attorney Paul Gallegos resulted in prejudiced jury verdicts that should be thrown out or, at least, retried.

Gundersen was arrested in February and stood trial on 28 charges, including two dozen counts of spousal rape with the use of an intoxicant, as well as charges of attempting to dissuade the victim of a crime, violating a court order and illegally possessing both a submachine gun and a pistol with a silencer.

After spending six weeks in court, a jury of five men and seven women acquitted Gundersen of the spousal rape charges, but returned guilty verdicts on 11 lesser charges of battery relating to nude photos Gundersen took of his wife, Darcie Seal, allegedly without her consent. The jury also convicted Gundersen on the two firearms charges.

While it is the policy of the Times-Standard not to identify alleged sexual assault victims, Seal has requested that both the court and the paper use her real name.

The motion filed Wednesday by Gundersen's attorney, Russell Clanton, first takes aim at his clients 11 battery convictions, saying the guilty verdicts were “contrary to both law and evidence.”

Jurors said after the trial that they arrived at one battery conviction each based on 10 nude photographs of Seal, allegedly taken without her consent, and another battery conviction based on Gundersen's undressing Seal in order to take the photos.

Clanton argues in the motion that the jury committed misconduct by essentially considering the lesser-included battery counts as separate charges. Jurors never established a link between the battery and the greater offenses of spousal rape or attempted spousal rape, Clanton argues.

Even if the court finds the jury acted appropriately and there is enough evidence to support the battery convictions, Clanton also argues they should be thrown out because the dates of the alleged acts of battery exceed the one-year statute of limitations for misdemeanors.

As to his clients weapons convictions, Clanton argues in the motion that Gallegos engaged in improper argument and questioning that prejudiced the jury. Clanton argues that while the weapons would be exempt from registration requirements if intended for law enforcement use, Gallegos made frequent reference to their being unregistered.

”The persistent suggestion by counsel, over the objection of the defendant, that 'registration' was required for both items was deceptive and therefore prosecutorial misconduct pursuant to section 1181 (5) of the Penal Code,” Clanton writes in the motion. “Counsel would submit that but for the deceptive tactics of counsel for the people the outcome would have been different on the two weapons counts.”

To buttress his points, Clanton includes with the motion six summaries of conversations between jurors and his private investigator, Rene Birnbaum. According to the summaries, the six jurors were unable to explain how they linked the battery convictions with the original rape charges and admitted to confusion over the registration requirement.

According to one of the summaries, the jury's first vote on the rape charges came in 11-1 in favor of convictions. The sole dissenting juror was then able to convince two others to join him, according to the summary, before the jury eventually settled on the lesser battery convictions.

Clanton is not challenging Gundersen's conviction of violating a court order barring him from contacting Seal.
Gallegos is scheduled to file a rebuttal to Clanton's motion by Nov. 19, and the matter will be heard at Gundersen's Nov. 21 sentencing hearing.


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

Thadeus Greenson/The Times-Standard
Article Launched: 11/13/2008 01:30:22 AM PST