This is the second installment of the Misuse of the grand jury against law enforcement article, continued from last month. In this installment, we cover the pre-trial investigation, use of outside experts, the applicable law, and the successful result of extensive pre-trial motions. BY WILLIAM R. RAPOPORT
Part 2 — Pretrial Investigation
Although legal challenges to the validity of the charges would be vigorously argued in pretrial defense motions, it was nonetheless necessary to simultaneously proceed with matters in preparation for trial. While there are many facets to the pretrial investigative activities undertaken in this case, the initial efforts focused on a critical review and evaluation of witness statements.
Subsequent efforts would involve an analytical incident reconstruction in order to contrast and/or reconcile witness statements with the available evidence.
One of the prosecutor’s assertions in alleging criminal negligence was that the Eureka PD SWAT team made a warrantless entry into Cheri Moore’s apartment in the absence of exigent circumstances. Offered in support of this assertion was the fact that the Vern’s furniture showroom, across the street from Moore’s apartment, was not completely evacuated by the police. Humboldt County District Attorney Paul Gallegos argued that this demonstrated that the officers did not truly consider Moore to be a threat.
In fact, Vern’s management was advised that all persons on their premises should remain on the opposite side of the building, away from 5th Street. In what may be described as an exercise in basic geometry and trigonometry, it was possible for the defense to conclusively demonstrate that Moore’s potential field of fire extended less than halfway into Vern’s showroom. Thus, the directive to remain on the east side of the building was both reasonable and sufficient for the safety of the persons on the premises.
A more critical issue was raised in terms of the ability of the SWAT patrol rifleman to have seen Moore’s hands from his rooftop vantage point. Both at the Coroner’s Inquest, and again at the grand jury, witnesses were shown the scene photographs taken by investigators shortly after the shooting of Moore. All the photos show the upper pane of the north window in the closed position. This was the window where Moore was standing when the patrol rifleman communicated the “hands free” signal.
The SWAT observer in the Mason’s building testified that although he was closer and was using binoculars, he never saw Moore’s hands free when he heard the signal broadcast.
Some members of the media fueled the speculation that a bogus “hands free” signal was given as a pretext to enter Moore’s apartment and use deadly force to end the standoff. Following the Coroner’s Inquest, the editors of the North Coast Journal raised the question, “Why didn’t the spotter with the best view of Moore see her hands?” While not directly accusing the patrol rifleman of lying, District Attorney Gallegos was more than pleased to leave the grand jury with the impression that one of the two tactical observers was being untruthful. In the event of a jury trial, this apparent breach of credibility would weigh heavily against the defense.
DA Gallegos made a cardinal error in failing to thoroughly investigate the statements and testimony given by the patrol rifleman, who reported that he saw Moore’s hands free when she reached with her right hand for the latch to close the window. Instead, Gallegos apparently chose to go with the testimony of the SWAT observer and to leave the glaring contradiction unresolved in the eyes of the jury. This investigative failure would be akin to ignoring an alibi offered by a suspect. Even a novice in criminal law would be expected to have the sense to evaluate the credibility of an alibi.
In February 2008, nearly two years after the incident, defense investigator Michael Schott, working with this author on behalf of SWAT team commander Lt. Tony Zanotti, requested and obtained images captured during the standoff by a Eureka Reporter newspaper photographer. Unlike all of the evidence photos, these images showed the upper north window to Moore’s apartment to be open.
This should have come as no surprise to the prosecution, since these and similar images had previously appeared on the front pages of the local newspapers. In addition, TV news reports had also featured video clips showing the same window to be open shortly before the shooting. A Eureka Reporter staff member advised that no one else, including members of the District Attorney’s Office, had ever requested these photos.
In the course of resolving the “hands free” paradox, the LDF defense began with the premise that both spotter officers were telling the truth. The next step would involve reconstruction of the incident with respect to the view each spotter had as the final moments leading up to the shooting unfolded.
In March 2008, the LDF defense team formulated a plan to obtain detailed measurements and photographs at the scene on or about April 14, the two-year anniversary of the incident. formulated a plan to obtain detailed measurements and photographs at the scene on or about April 14, the two-year anniversary of the incident. Charts and certified weather observations were obtained from the National Climatic Data Center for the time of the shooting on April 14, 2006.
Due to the 2008 leap year, it was determined that the nearest matching conditions in terms of sunrise, sunset, solar azimuth and elevation would occur at 12:33 p.m. on April 13, 2008. In particular, the angle of the sun would be a nearly exact match to that on the date of the incident. Using digital imaging techniques, it was possible to locate the exact station or position from which the news photo had been taken.
With current photos taken from the original camera station, further forensic imaging techniques enabled the scene investigators to position the windows of Moore’s former apartment nearly identical to the positions shown in the news photo, the exact position of the North Window at the time the “hands free” signal was given.
Beginning at about 12:33 p.m., photographs of the apartment windows were taken from the position of the SWAT observer on the third floor of the Mason’s building. Photos were also taken from the rooftop where the patrol rifleman had been stationed.
Through a process of uniformly scaling the photos and creating semi-transparent digital overlays, the defense was able to establish that at the time of the “hands free” signal, the SWAT observer’s view of Moore’s right hand was blocked by objects and paper signs which Moore had placed in the window. Conversely, the photos taken from the vantage point of the patrol spotter unequivocally demonstrated that he did, in fact, have a clear view of Moore’s hands when he uttered the “hands free” radio transmission.
Part 3 — Outside Experts
In the search to locate experts to assist in the defense of Zanotti and Chief Dave Douglas, this office contacted a few lawyers who, in turn, contacted a few people in local law enforcement, and came up with two names to be called to explore their expertise in SWAT. One of those experts was David W. Bliss of International Training Resources in Mountain View, California.
As it turned out, Bliss had been, for years, training the Eureka PD’s SWAT team and was very familiar with this particular operation.
The other name was Stuart A. Meyers of Operational Tactics, Inc., in Hagerstown, Maryland. Meyers turned out to be the beginning of a serendipitous sequence of events that proves that at times “it is better to be lucky than good.” I placed a cold call to Meyers and explained my function in representing Lieutenant Zanotti in a SWAT operation in Humboldt County, California. I was sure that he did not know anything about it, but I wanted to ask him some questions.
To my surprise, Meyers told me that he did, in fact, know about this operation and explained to me that in June 2007, he had received a call from the chief investigator for the Humboldt County District Attorney’s Office, who ran the facts by him at that time. Meyers had taken notes of that conversation and confirmed that he had told the investigator that he, Meyers, didn’t see any criminal liability.
The California Supreme Court, in Johnson v. Superior Court (1975) 15 Cal. 3rd 248, held that the prosecution has an affirmative duty to advise the grand jury of known exculpatory evidence. So compelling was this Supreme Court decision that following that decision, the California legislature enacted Penal Code §§939.7 and 939.71, which codified this obligation, recognizing that the grand jury is a tool of the prosecution, and if the prosecution doesn’t tell the grand jury about such exculpatory evidence, they would not know to ask to hear it and, therefore, one side of the story would be completely missing, i.e., the defense.
Meyers had an incredible resumé, including training of hundreds of law enforcement agencies in SWAT tactics across the United States, training of multiple U.S. armed forces units, and having been selected as a special consultant to train the SWAT/sniper teams for deployment operations at the 2002 Olympics in Salt Lake City, Utah.
After I reviewed the grand jury transcript, it was clear that nowhere was his name mentioned by the district attorney - an obvious violation of the holding in Johnson v. Superior Court and Penal Code §§ 939.7 and 939.71.
With this as a starting point, I discussed with both Sergeant William Nova (the present head of the SWAT operations for the Eureka Police Department, who was on light duty on the date of the incident) and Lieutenant Murl Harpham (the former founder of the Eureka Police Department SWAT unit), both with extensive tactical experience, whether or not they had had any contact from the chief investigator from the District Attorney’s Office regarding this case.
Both told me, separately, that they had been questioned by the investigator and, like Stuart Meyers, each had advised the investigator that this was a textbook operation and they did not see any criminal liability.
As it turned out, the District Attorney’s Office also failed to mention either of these witnesses during the grand jury proceedings. With declarations from Meyers, Sergeant Nova and Lieutenant Harpham - all reciting the same scenario - the “Johnson Motion” took full form. When faced with this motion, the district attorney and his chief investigator filed declarations in opposition to the motion. Meyers, Nova, and Harpham responded, using terms that characterized the opposition as misleading and false.
Over a period of several months after the grand jury indictment was returned (based on incomplete information), I also received dozens of calls from SWAT commanders throughout the United States expressing concern about this indictment. In order to find some outside, yet local, expertise, I contacted Ron McCarthy, a retired sergeant from the Los Angeles Sheriff’s Office, now doing private consulting in SWAT tactics. McCarthy is located in San Clemente, California, and has an extensive background in SWAT expertise and has trained and taught in California and in other states.
I was advised that I might want to also contact Deputy Chief Mike Hellman of the Los Angeles Sherriff’s Office regarding his input into the propriety of this SWAT operation. Deputy Chief Hellman, at his own expense, put in hundreds of hours reviewing transcripts and reports and advising me regarding the propriety of each step of the operation.
At this point, I was comfortable with the level of expertise that we had brought to bear on the tactical aspect of this SWAT operation, but now needed assistance on the legal aspects of the viability of this indictment.
With the authority of the Legal Defense Fund, I enlisted the aid of an outside research attorney - Renee Barenson of Redwood City, California - whose history included an assignment as clerk for the California Supreme Court for 6 ½ years. Barenson, on behalf of Lieutenant Zanotti, worked diligently with the assistance of attorney Greg Rael in Eureka (her counterpart in the “legal eagle” side of this case) to address the substantial legal deficiencies in the district attorney’s presentation of instructions and arguments to the grand jury, which helped me prepare for the Johnson Motion.
Part 4 — The Law that should have been givento the grand jury
Under California Penal Code §995(a)(B), an indictment shall be set aside by the Court, upon a defendant’s motion, if the defendant has been indicted without reasonable or probable cause. Greg Rael (on behalf of Chief Douglas) and Renee Barenson (who was specially hired by the PORAC Legal Defense Fund on behalf of Lieutenant Zanotti) set about to review with a fine tooth comb the Grand Jury Transcripts (1,687 pages) and the numerous exhibits, jury instructions, and argument by the district attorney. What they discovered can only be characterized as a “Target Rich Environment.” Their 73-page brief under Penal Code §995, and their 25-page rebuttal to the district attorney’s opposition, were models of excellence in legal research and writing. In short, these briefs proved that the district attorney was shown to have clearly violated established law in his instructions and arguments to the grand jury in numerous aspects. In the conclusion, they cited two quotes from cases that have shown the abuse of the grand jury system.
The first was Justice Douglas of the U.S. Supreme Court, who stated: “This great institution of the past [the grand jury] has long ceased to be the guardian of the people for which purpose it was created at Runnymede. Today it is but a convenient tool for the prosecutor – too often used solely for publicity. “Any experienced prosecutor will admit that he can indict anybody at any time for almost anything before any grand jury.”
In addition, they cited the case of United States v. Navarro-Vargas (9th Cir. 2005) 408 F.3d 1184 at 1194: “Currently, grand jurors no longer perform any other function but to investigate crimes and screen indictments, and they tend to indict in the overwhelming number of cases brought by prosecutors. Because of this, many criticize the modern grand jury as no more than a ‘rubber stamp’ for the prosecutor.
“Day in and day out, the grand jury affirms what the prosecutor calls upon to confirm – investigating as it is led, ignoring what it is never advised to notice, failing to indict, or indicting as a prosecutor ‘submits’ that it should.”
The only citation which I personally wanted to see in this brief, but the cooler legal minds prevailed, was the following: “The fundamental criticism of grand juries can be stated simply. Many believe that the ‘shield’ works poorly and that the ‘sword’ works only too well. The grand jury is frequently criticized for failing to act as a meaningful check on the prosecutor’s charging decisions; according to the clichés, it is a ‘rubber stamp,’ perfectly willing to ‘indict a ham sandwich’ if asked to do so by the government.”
In the end, the defense opined to the Superior Court in Humboldt County that it had the option of granting an extremely well-documented and researched Penal Code §995 motion, thereby dismissing the action without having to address the Johnson Motion, or addressing the Johnson Motion, which would require the Court to make findings on the credibility of two law enforcement officers for the Eureka PD versus the chief investigator for the District Attorney’s Office, as they had made diametrically opposed declarations under penalty of perjury. That was the status of the pre-trial motions as they came up for hearing on Aug. 26, 2008.
Part 5 — The result of extensive pretrial motions
To borrow the saying from Paul Harvey: “And now ...the rest of the story.”
After oral argument on Aug. 26, 2008, the Honorable John T. Feeney, Superior Court judge in Humboldt County, announced to a packed courtroom of law enforcement officers from all over Humboldt County and the California Highway Patrol, that he had made findings under Penal Code §995 as follows: The indictments were not supported by probable cause;
The entry into Cheri Moore’s apartment without a warrant was lawful, given (a) her earlier brandishing of a firearm at the officers, and (b) the exigent circumstances of her threat to burn down the apartment building;
There was not reasonable or probable cause to support a finding or conclusion that any law enforcement officer involved, including Douglas and Zanotti, committed an unlawful act or acted in an aggravated or reckless manner, causing the death of Cheri Moore;
And there was insufficient evidence presented to the grand jury to support a finding that Douglas and/or Zanotti failed to adequately supervise the SWAT and Crisis Negotiation teams.
The Court made other findings about the district attorney’s failures to present relevant law and instructions to the grand jury, but the bottom line, according to the Court, was “The § 995 Motion is granted and the charges are dismissed.”
CONCLUSION
Having been involved in the defense of police officers for 34 of my 38 years in the practice of law, it is inconceivable to me that these proper results could have been achieved without the confidence and commitment of the PORAC Legal Defense Fund.
As you can see, every effort was brought to bear on this nationally important issue, and the PORAC Legal Defense Fund recognized the importance from the outset.
On behalf of myself and Lieutenant Antonio Zanotti, we cannot begin to thank the PORAC Legal Defense Fund enough for its unwavering support leading to this just and proper conclusion, and justice for all of those officers around this country involved at every level in Tactical Police Operations.
Charts and certified weather observations were obtained from the National Climatic Data Center for the time of the shooting on April 14, 2006.
Due to the 2008 leap year, it was determined that the nearest matching conditions in terms of sunrise, sunset, solar azimuth and elevation would occur at 12:33 p.m. on April 13, 2008. In particular, the angle of the sun would be a nearly exact match to that on the date of the incident.
Using digital imaging techniques, it was possible to locate the exact station or position from which the news photo had been taken. With current photos taken from the original camera station, further forensic imaging techniques enabled the scene investigators to position the windows of Moore’s former apartment nearly identical to the positions shown in the news photo, the exact position of the north window at the time the “hands free” signal was given.
Beginning at about 12:33 p.m., photographs of the apartment windows were taken from the position of the SWAT observer on the third floor of the Mason’s building. Photos were also taken from the rooftop where the patrol rifleman had been stationed.
Through a process of uniformly scaling the photos and creating semi-transparent digital overlays, the defense was able to establish that at the time of the “hands free” signal, the SWAT observer’s view of Moore’s right hand was blocked by objects and paper signs which Moore had placed in the window. Conversely, the photos taken from the vantage point of the patrol spotter unequivocally demonstrated that he did, in fact, have a clear view of Moore’s hands when he uttered the “hands free” radio transmission.
◼ Source
