Humboldt County Superior Court Judge John Feeney granted a defense attorney's motion to dismiss the pending case against former Eureka Police Department Chief David Douglas and Lt. Tony Zanotti in regards to the death of Cheri Lynn Moore.
Moore, 48, was shot and killed April 14, 2006, by EPD officers after brandishing a flare gun during a standoff that lasted approximately 2 1/2 hours.
After hearing the arguments presented by Humboldt County District Attorney Paul Gallegos and those of the defense attorneys, Feeney found no criminal conduct by either defendant.
The courtroom was packed with law enforcement officials and they burst into applause after the decision was rendered.
Published: Aug 26 2008, 4:34 PM · Updated: Aug 26 2008, 4:44 PM
Category: Local News
Showing posts with label Cheri Moore. Show all posts
Showing posts with label Cheri Moore. Show all posts
8.26.2008
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
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
7.11.2008
Motion to dismiss Douglas-Zanotti charges is inching forward
Motion to dismiss Douglas-Zanotti charges is inching forward
A Humboldt County Superior Court on Thursday set a timeline to consider a defense motion to dismiss involuntary manslaughter charges against former Eureka Police Chief David Douglas and Lt. Tony Zanotti.
The two police commanders were indicted by a criminal grand jury in December 2007 for their decision-making roles in the April 14, 2006 police shooting death of Cheri Lyn Moore. The defendants pleaded not guilty to the charges in April.
Douglas and Zanotti's defense team filed two separate motions seeking to dismiss the charges on June 18, arguing that District Attorney Paul Gallegos improperly represented the law to the jury and that he failed to present evidence that would have backed up Douglas and Zanotti's decisions that day.
”In this case, the preceding resulted in a travesty of justice -- a due process violation -- that must be corrected by the court,” one of the motions states.
Prior to Thursday's hearing on the motions, Gallegos and the defense agreed to a timeline for the motions to be heard. They set a July 21 deadline for Gallegos to submit an opposition to the defense motion and a July 31 deadline for the defense to respond.
Oral arguments are scheduled to be heard before Judge John Feeney on a yet-to-be-determined date in August.
Many law enforcement and legal experts have called the indictments handed up to Douglas and Zanotti unprecedented, as they charged the incident's decision makers and not the officers who fired the fatal gunshots.
Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, brandished a flare gun at officers, 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.
In making his case to the grand jury, Gallegos argued that Douglas and Zanotti should have obtained a Ramey warrant before the SWAT team entered Moore's apartment and that the commanders acted with criminal negligence by failing to “adequately supervise” police, SWAT team members and the negotiating team during the standoff.
The defense motions filed last month argue that Gallegos knew of expert witnesses who felt the standoff was handled correctly, but didn't call them to testify before the jury, and that Gallegos failed to properly instruct 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,” one of the motions states.
Thadeus Greenson/The Times-Standard
Article Launched: 07/11/2008 01:27:11
A Humboldt County Superior Court on Thursday set a timeline to consider a defense motion to dismiss involuntary manslaughter charges against former Eureka Police Chief David Douglas and Lt. Tony Zanotti.
The two police commanders were indicted by a criminal grand jury in December 2007 for their decision-making roles in the April 14, 2006 police shooting death of Cheri Lyn Moore. The defendants pleaded not guilty to the charges in April.
Douglas and Zanotti's defense team filed two separate motions seeking to dismiss the charges on June 18, arguing that District Attorney Paul Gallegos improperly represented the law to the jury and that he failed to present evidence that would have backed up Douglas and Zanotti's decisions that day.
”In this case, the preceding resulted in a travesty of justice -- a due process violation -- that must be corrected by the court,” one of the motions states.
Prior to Thursday's hearing on the motions, Gallegos and the defense agreed to a timeline for the motions to be heard. They set a July 21 deadline for Gallegos to submit an opposition to the defense motion and a July 31 deadline for the defense to respond.
Oral arguments are scheduled to be heard before Judge John Feeney on a yet-to-be-determined date in August.
Many law enforcement and legal experts have called the indictments handed up to Douglas and Zanotti unprecedented, as they charged the incident's decision makers and not the officers who fired the fatal gunshots.
Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, brandished a flare gun at officers, 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.
In making his case to the grand jury, Gallegos argued that Douglas and Zanotti should have obtained a Ramey warrant before the SWAT team entered Moore's apartment and that the commanders acted with criminal negligence by failing to “adequately supervise” police, SWAT team members and the negotiating team during the standoff.
The defense motions filed last month argue that Gallegos knew of expert witnesses who felt the standoff was handled correctly, but didn't call them to testify before the jury, and that Gallegos failed to properly instruct 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,” one of the motions states.
Thadeus Greenson/The Times-Standard
Article Launched: 07/11/2008 01:27:11
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
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
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
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
ER - No charges for Douglas and Zanotti
No charges for Douglas and Zanotti
The arraignment for former Eureka Police Department Chief Dave Douglas and EPD Lt. Antonio Zanotti was continued a third time Tuesday in the Humboldt County Superior Courthouse.
At arraignments, defendants are informed of the charges against them and enter pleas. Douglas’ Eureka-based attorney, Bill Bragg, said his client will plea not guilty, as will Zanotti.
When Douglas and Zanotti were indicted by a Humboldt County criminal grand jury on Dec. 3, they were accused of felonious involuntary manslaughter for their leadership roles in the death of Cheri Lyn Moore on April 14, 2006.
Douglas was the acting chief of police at the time and Zanotti was the incident commander.
Zanotti’s attorney, William Rapoport of Redwood City, requested the arraignment be continued because the defense has not received 105 exhibits of evidence — including pictures, Zanotti’s testimony at the County Coroner’s inquest and questions jurors inquired of witnesses who testified.
“We’re entitled to know what the grand jury wanted to get from those witnesses,” Bragg said.
At the prior arraignment date on Feb. 22, Humboldt County District Attorney Paul Gallegos stipulated that he would have copies of the exhibits made — which are court property — and provided to the defense.
That was over a month ago, and they still haven’t been received, Bragg said.
Gallegos said that he expects the exhibits will be provided by the end of the week. “They’re going to get everything,” he said.
“My client wants to move this thing along,” Bragg said, but the exhibits may impact any pre-trial motions the defense may file — which must be done within 60 days of the arraignment.
One motion Bragg said he intends to file, will state that Gallegos improperly instructed the grand jury on the law.
“If we’re right, we’ll never go to trial — and that’s what we anticipate happening,” he said.
The arraignment was rescheduled for April 22, at 1:30 p.m.
Judge John T. Feeney presided over the hearing and Douglas and Zanotti were both present with their wives.
The courtroom was packed full of men and women in uniform, most of whom were off-duty, current EPD Chief Garr Nielsen said.
It’s likely the department deployed five officers to patrol the streets Tuesday, and probably just two of them attended the hearing, he said. “The streets were as safe as they are any other time.”
Deputy Public Defender and Redwood Chapter of the American Civil Liberties Union Chairperson, Christina Allbright said that in her opinion, if the officers weren’t working, they shouldn’t be in their uniforms.
“(And) if they are working, why are they here?” she said.
EPD officers dressed in uniform to show their support and department allegiance, Nielsen said.
“I think it’s to let everybody know — to let the community know the officers are standing as a united front,” he said.
Allbright also said she was puzzled by the special treatment Douglas and Zanotti received. “I’ve never seen defendants escorted through the back door.”
Bragg said it was an attempt to avoid unpleasant confrontations in a high-profile case. It’s easier security-wise than having them wait in the hallway where they are exposed to people with different opinions on the case, he said.
Additionally, Allbright said she’s never seen a chief of police profess the innocence of criminals. “It’s a wonderful standard that should be applied to all defendants.”
Nielsen said that he “absolutely” gives all defendants the same presumption of innocence. “Everybody is innocent until proven guilty, and that goes for everybody including police officers.”
By EMILY WILSON, The Eureka Reporter
Published: Apr 1 2008, 10:46 PM
The arraignment for former Eureka Police Department Chief Dave Douglas and EPD Lt. Antonio Zanotti was continued a third time Tuesday in the Humboldt County Superior Courthouse.
At arraignments, defendants are informed of the charges against them and enter pleas. Douglas’ Eureka-based attorney, Bill Bragg, said his client will plea not guilty, as will Zanotti.
When Douglas and Zanotti were indicted by a Humboldt County criminal grand jury on Dec. 3, they were accused of felonious involuntary manslaughter for their leadership roles in the death of Cheri Lyn Moore on April 14, 2006.
Douglas was the acting chief of police at the time and Zanotti was the incident commander.
Zanotti’s attorney, William Rapoport of Redwood City, requested the arraignment be continued because the defense has not received 105 exhibits of evidence — including pictures, Zanotti’s testimony at the County Coroner’s inquest and questions jurors inquired of witnesses who testified.
“We’re entitled to know what the grand jury wanted to get from those witnesses,” Bragg said.
At the prior arraignment date on Feb. 22, Humboldt County District Attorney Paul Gallegos stipulated that he would have copies of the exhibits made — which are court property — and provided to the defense.
That was over a month ago, and they still haven’t been received, Bragg said.
Gallegos said that he expects the exhibits will be provided by the end of the week. “They’re going to get everything,” he said.
“My client wants to move this thing along,” Bragg said, but the exhibits may impact any pre-trial motions the defense may file — which must be done within 60 days of the arraignment.
One motion Bragg said he intends to file, will state that Gallegos improperly instructed the grand jury on the law.
“If we’re right, we’ll never go to trial — and that’s what we anticipate happening,” he said.
The arraignment was rescheduled for April 22, at 1:30 p.m.
Judge John T. Feeney presided over the hearing and Douglas and Zanotti were both present with their wives.
The courtroom was packed full of men and women in uniform, most of whom were off-duty, current EPD Chief Garr Nielsen said.
It’s likely the department deployed five officers to patrol the streets Tuesday, and probably just two of them attended the hearing, he said. “The streets were as safe as they are any other time.”
Deputy Public Defender and Redwood Chapter of the American Civil Liberties Union Chairperson, Christina Allbright said that in her opinion, if the officers weren’t working, they shouldn’t be in their uniforms.
“(And) if they are working, why are they here?” she said.
EPD officers dressed in uniform to show their support and department allegiance, Nielsen said.
“I think it’s to let everybody know — to let the community know the officers are standing as a united front,” he said.
Allbright also said she was puzzled by the special treatment Douglas and Zanotti received. “I’ve never seen defendants escorted through the back door.”
Bragg said it was an attempt to avoid unpleasant confrontations in a high-profile case. It’s easier security-wise than having them wait in the hallway where they are exposed to people with different opinions on the case, he said.
Additionally, Allbright said she’s never seen a chief of police profess the innocence of criminals. “It’s a wonderful standard that should be applied to all defendants.”
Nielsen said that he “absolutely” gives all defendants the same presumption of innocence. “Everybody is innocent until proven guilty, and that goes for everybody including police officers.”
By EMILY WILSON, The Eureka Reporter
Published: Apr 1 2008, 10:46 PM
3.27.2008
NCJ - Best enemies
October 5, 2006
Best enemies
by HANK SIMS
You may think it out of character,but we praise our brethren at rival media outlets sparingly, and in only cases of genuine merit. Develop a reputation as a glad-hander, a back-slapper or a scarlet-faced guffawer, and your colleagues in the trade will rightly shun you. They will think you a dolt, and they'll probably be correct. But when a piece comes along that absolutely astounds -- think of the McKinleyville Press story, a few months back, on the sisters that gave birth simultaneously in adjacent hospital rooms -- there's nothing for it but to send along an e-mail thanking the author for making us stop and marvel, for dissolving the confines of the cruel quotidian. We are readers, first and foremost, and also autonomous citizens of a democracy.
As it happens, we had occasion to send two notes of applause across the bay last week -- one to Heather Muller of the Eureka Reporter and one to Kimberly Wear of the Times-Standard, who we hope shared it with her deskmate Chris Durant. In these cases, the awe was not inspired by the subject matter of the stories -- each of them "hard news" pieces -- but from the reporters' immense enterprise in ferreting out some obscure data and presenting it well, in service of the county. Their stories centered on political donations to District Attorney Paul Gallegos, and how they affected or didn't affect a criminal case prosecuted by his office.
On Tuesday, the Reporter published the outcome of several criminal cases, including nine felony counts, against Derek Bowman, son of Leonard and Ellie Bowman of Loleta. The younger Bowman had been charged with check fraud, burglary, domestic battery, drug possession and unlawful intercourse with a 14-year-old girl, among other things. All of the charges were either dropped, or Bowman plead guilty to them in exchange for a suspended sentence. Then he was given 180 days in prison for violation of probation. The Reporter wondered whether the seemingly lenient sentence might have anything to do with the fact that the Bear River Band of the Rohnerville Rancheria, which Leonard Bowman chairs, had donated $10,000 to Gallegos' last political campaign, or the fact that Ellie Bowman had protested outside the courthouse against the candidacy of Deputy DA Worth Dikeman, who had challenged Gallegos. (Earlier, Dikeman had successfully prosecuted another Bowman son for murder.) Gallegos did not respond to the paper's questions about the case, despite apparently having been given ample opportunity to do so.
The next day, the Times-Standard came out with a story in response. In it, Deputy DA Max Cardoza, who had tried the Bowman case and a 25-year veteran of the office, strongly denied that political considerations had played any role in the case's outcome. It quoted from an internal memo written by Gallegos that requested that both he and Dikeman be "screened" from the case. (Strangely, the memo was written after the case had already been settled).
The appearance of the Times-Standard story set off a great hue and cry, with letters from Gallegos' campaign manager, Alison Sterling Nichols, demanding that the Reporter retract its "factually incorrect" story. She didn't point out any actual incorrect facts, because there weren't any. There were holes in the story, but they should be lain squarely at the feat of Gallegos, who chose to respond to the paper's many questions with a non-responsive, fatuous one-liner. ("This office operates without fear or favor.") The Reporter ran the story it had, and if we lived in a real city rather than a small town, few people would have had any serious objection. But Sterling Nichols and others chose to use the occasion to demonstrate, once again, that they simply have a hard time wrapping their heads around the fact that Gallegos is part of the government. You want the media to ask hard questions of the government, right?
If this turns out to be a growing trend, this business of public officials turning up their nose at one or another of the daily papers, we're going to need both of them to report any story. If you haven't already sold your soul to one of the various political factions in town, you might want to step back a bit and take the long view. Though it looks like competition on the surface, and while their publishers no doubt wouldn't mind stealing a great big helping of advertising cash off each others' plates, the two newspapers function in cooperation, not competition. They're both getting to the bottom of things, together. Good cop, bad cop. Thesis, antithesis, synthesis.
Hey, you're a confirmed paranoid, right? You're certain that The Man is messing with your head, aren't you? If you're reading this in Humboldt County, chances are you fit one or both of these descriptions. So try this out for size -- a candidate in the upcoming election has planted an operative inside the Humboldt County Elections Office. It has possibilities, doesn't it? You can work with it, can't you?
We're sure you can. So, check it: Kelly Sanders is an administrative analyst who has worked with the office for about a year, according to Elections chief Lindsey McWilliams. She's the former director of the Redwood Coast Dixieland Jazz Festival. She also happens to be the sister of Bonnie Neely, the 4th District supervisor who is currently seeking reelection.
It's not like she just answers phones, either. (Though if she did answer a phone, what would she say?) In fact, this time around she's going to be in charge of the county's super-scary new voting booths aimed at helping disabled citizens cast their ballot. What's so scary about that, you ask? Not the technology itself -- though it is freaking terrifying -- but the fact that the county's existing electronic vote-counting apparatuses can't process its votes. That means that elections staffers will have to hand-copy every vote cast at the disabled-access machines to one of the county's AccuVote ballots. This leaves the inescapable conclusion that Sanders, and possibly other of her colleagues, have the means, the will and the secret Illuminati brainwash training to throw the election!
Please, please, please take a deep breath, Lindsey McWilliams begs. In fact, the re-voting system will have checks, counter-checks and built-in redundancies that will make any vote-rigging virtually impossible. There'll be two sets of eyes on it at all times, and there'll be a paper trail of the original votes cast at the disabled-access machines (which aren't manufactured by Diebold, if that's what you're worried about).
That's leaving aside the fact that Sanders is a human being, one who probably has at least as much honor as you or me. "Rumors to the contrary, Kelly Sanders is not an android and has no moving electronic parts that I know of," the ever-quotable McWilliams confirmed. (Likely story!) And she's sensible, too -- so sensible that she declined to speak with us when we asked.
In fact, we don't expect any great outburst of elections freak-out over this one. Because why? Because the demographics are such that most of the elections critics around here are Neely voters anyway. No harm, no foul. But just imagine what you'd get if there were a Flemming or a Bass in the office.
We finally got a chance to talk with Dennis Cunningham last week. Cunningham's a San Francisco attorney who has developed a reputation as something of a superlawyer in claims cases against government agencies, usually on the behalf of activists and others. He's had a couple of Humboldt County-related cases in the past, and they were both big ones: the Pepper Spray lawsuit against two Humboldt County police agencies, which resulted in a win for the activists whose eyeballs police had swabbed with the noxious substance, and the similarly victorious Judi Bari-Darryl Cherney civil rights lawsuit against the Oakland Police Department and the Federal Bureau of Investigation. The word we had was that Cunningham was considering filing a wrongful death suit against the Eureka Police Department over the Cheri Lyn Moore incident (see "Cause of Death," Sept. 21).
Is he going to sue? The answer appears to be maybe. The six-month anniversary of the incident is next Saturday, and that's the deadline to file a wrongful death claim. Cunningham said that his partner, Gordon Kaupp, has been looking into the case, but that as far as he knew, no one in his office has been able to contact Moore's son -- the only relative with standing to file a claim. Cunningham said that he was unaware that the deadline was approaching so soon -- he thought that the shooting had happened in July. "We'll have to make our move," he said.
If a suit is filed, it will further buttress local doctor Ken Miller's second career -- third career? -- as a midwife of politically charged litigation. Miller was the one who brought the now-dormant Headwaters lawsuit to the office of District Attorney Paul Gallegos. Cunningham said that Miller had been working with Kaupp on the potential Moore lawsuit.
Best enemies
by HANK SIMS
You may think it out of character,but we praise our brethren at rival media outlets sparingly, and in only cases of genuine merit. Develop a reputation as a glad-hander, a back-slapper or a scarlet-faced guffawer, and your colleagues in the trade will rightly shun you. They will think you a dolt, and they'll probably be correct. But when a piece comes along that absolutely astounds -- think of the McKinleyville Press story, a few months back, on the sisters that gave birth simultaneously in adjacent hospital rooms -- there's nothing for it but to send along an e-mail thanking the author for making us stop and marvel, for dissolving the confines of the cruel quotidian. We are readers, first and foremost, and also autonomous citizens of a democracy.
As it happens, we had occasion to send two notes of applause across the bay last week -- one to Heather Muller of the Eureka Reporter and one to Kimberly Wear of the Times-Standard, who we hope shared it with her deskmate Chris Durant. In these cases, the awe was not inspired by the subject matter of the stories -- each of them "hard news" pieces -- but from the reporters' immense enterprise in ferreting out some obscure data and presenting it well, in service of the county. Their stories centered on political donations to District Attorney Paul Gallegos, and how they affected or didn't affect a criminal case prosecuted by his office.
On Tuesday, the Reporter published the outcome of several criminal cases, including nine felony counts, against Derek Bowman, son of Leonard and Ellie Bowman of Loleta. The younger Bowman had been charged with check fraud, burglary, domestic battery, drug possession and unlawful intercourse with a 14-year-old girl, among other things. All of the charges were either dropped, or Bowman plead guilty to them in exchange for a suspended sentence. Then he was given 180 days in prison for violation of probation. The Reporter wondered whether the seemingly lenient sentence might have anything to do with the fact that the Bear River Band of the Rohnerville Rancheria, which Leonard Bowman chairs, had donated $10,000 to Gallegos' last political campaign, or the fact that Ellie Bowman had protested outside the courthouse against the candidacy of Deputy DA Worth Dikeman, who had challenged Gallegos. (Earlier, Dikeman had successfully prosecuted another Bowman son for murder.) Gallegos did not respond to the paper's questions about the case, despite apparently having been given ample opportunity to do so.
The next day, the Times-Standard came out with a story in response. In it, Deputy DA Max Cardoza, who had tried the Bowman case and a 25-year veteran of the office, strongly denied that political considerations had played any role in the case's outcome. It quoted from an internal memo written by Gallegos that requested that both he and Dikeman be "screened" from the case. (Strangely, the memo was written after the case had already been settled).
The appearance of the Times-Standard story set off a great hue and cry, with letters from Gallegos' campaign manager, Alison Sterling Nichols, demanding that the Reporter retract its "factually incorrect" story. She didn't point out any actual incorrect facts, because there weren't any. There were holes in the story, but they should be lain squarely at the feat of Gallegos, who chose to respond to the paper's many questions with a non-responsive, fatuous one-liner. ("This office operates without fear or favor.") The Reporter ran the story it had, and if we lived in a real city rather than a small town, few people would have had any serious objection. But Sterling Nichols and others chose to use the occasion to demonstrate, once again, that they simply have a hard time wrapping their heads around the fact that Gallegos is part of the government. You want the media to ask hard questions of the government, right?
If this turns out to be a growing trend, this business of public officials turning up their nose at one or another of the daily papers, we're going to need both of them to report any story. If you haven't already sold your soul to one of the various political factions in town, you might want to step back a bit and take the long view. Though it looks like competition on the surface, and while their publishers no doubt wouldn't mind stealing a great big helping of advertising cash off each others' plates, the two newspapers function in cooperation, not competition. They're both getting to the bottom of things, together. Good cop, bad cop. Thesis, antithesis, synthesis.
Hey, you're a confirmed paranoid, right? You're certain that The Man is messing with your head, aren't you? If you're reading this in Humboldt County, chances are you fit one or both of these descriptions. So try this out for size -- a candidate in the upcoming election has planted an operative inside the Humboldt County Elections Office. It has possibilities, doesn't it? You can work with it, can't you?
We're sure you can. So, check it: Kelly Sanders is an administrative analyst who has worked with the office for about a year, according to Elections chief Lindsey McWilliams. She's the former director of the Redwood Coast Dixieland Jazz Festival. She also happens to be the sister of Bonnie Neely, the 4th District supervisor who is currently seeking reelection.
It's not like she just answers phones, either. (Though if she did answer a phone, what would she say?) In fact, this time around she's going to be in charge of the county's super-scary new voting booths aimed at helping disabled citizens cast their ballot. What's so scary about that, you ask? Not the technology itself -- though it is freaking terrifying -- but the fact that the county's existing electronic vote-counting apparatuses can't process its votes. That means that elections staffers will have to hand-copy every vote cast at the disabled-access machines to one of the county's AccuVote ballots. This leaves the inescapable conclusion that Sanders, and possibly other of her colleagues, have the means, the will and the secret Illuminati brainwash training to throw the election!
Please, please, please take a deep breath, Lindsey McWilliams begs. In fact, the re-voting system will have checks, counter-checks and built-in redundancies that will make any vote-rigging virtually impossible. There'll be two sets of eyes on it at all times, and there'll be a paper trail of the original votes cast at the disabled-access machines (which aren't manufactured by Diebold, if that's what you're worried about).
That's leaving aside the fact that Sanders is a human being, one who probably has at least as much honor as you or me. "Rumors to the contrary, Kelly Sanders is not an android and has no moving electronic parts that I know of," the ever-quotable McWilliams confirmed. (Likely story!) And she's sensible, too -- so sensible that she declined to speak with us when we asked.
In fact, we don't expect any great outburst of elections freak-out over this one. Because why? Because the demographics are such that most of the elections critics around here are Neely voters anyway. No harm, no foul. But just imagine what you'd get if there were a Flemming or a Bass in the office.
We finally got a chance to talk with Dennis Cunningham last week. Cunningham's a San Francisco attorney who has developed a reputation as something of a superlawyer in claims cases against government agencies, usually on the behalf of activists and others. He's had a couple of Humboldt County-related cases in the past, and they were both big ones: the Pepper Spray lawsuit against two Humboldt County police agencies, which resulted in a win for the activists whose eyeballs police had swabbed with the noxious substance, and the similarly victorious Judi Bari-Darryl Cherney civil rights lawsuit against the Oakland Police Department and the Federal Bureau of Investigation. The word we had was that Cunningham was considering filing a wrongful death suit against the Eureka Police Department over the Cheri Lyn Moore incident (see "Cause of Death," Sept. 21).
Is he going to sue? The answer appears to be maybe. The six-month anniversary of the incident is next Saturday, and that's the deadline to file a wrongful death claim. Cunningham said that his partner, Gordon Kaupp, has been looking into the case, but that as far as he knew, no one in his office has been able to contact Moore's son -- the only relative with standing to file a claim. Cunningham said that he was unaware that the deadline was approaching so soon -- he thought that the shooting had happened in July. "We'll have to make our move," he said.
If a suit is filed, it will further buttress local doctor Ken Miller's second career -- third career? -- as a midwife of politically charged litigation. Miller was the one who brought the now-dormant Headwaters lawsuit to the office of District Attorney Paul Gallegos. Cunningham said that Miller had been working with Kaupp on the potential Moore lawsuit.
2.28.2008
TS - State of mind
State of mind
Friends of Cheri Lyn Moore questioned during grand jury proceedings that led to charges of involuntary manslaughter against top Eureka police officials seem to disagree over whether her death might have been, as a defense expert insisted, suicide by cop.
An expert provided by Lt. Tony Zanotti, SWAT team commander on April 14, 2006, told the grand jury that Moore showed a number of signs that she was suicidal and that she intended for police to kill her. Expert George Williams said that any non-suicidal suspect faced with three armed policemen would have surrendered.
”The police weren't out there fishing for this,” Williams told the grand jury under questioning by Humboldt County District Attorney Paul Gallegos. “She initiated this action.”
Zanotti and former Police Chief Dave Douglas were brought up on involuntary manslaughter charges stemming from the 2006 incident after a criminal grand jury found the SWAT team acted without warrants and failed to adequately supervise the operation.
Moore was shot dead by officers who stormed her apartment after a 2 1/2-hour standoff, during which Moore threw objects out her window, brandished a flare gun, made threats and blared music.
Moore had called county mental health workers who alerted police to her threats to burn down her apartment building at 516 G St. She was reportedly despondent over the anniversary of her son's death and agitated from not taking her medication.
Moore may also have been gravely confused over the police activity that was unfolding around her. Moore's friend Marcus
Smith told the grand jury he talked to Moore several times that day. He was on a cell phone with Moore as police were arriving, and was later told by a member of the negotiating team to hang up.
”And she didn't believe that they were real cops out there,” Smith said. “She thought it was the landlord trying to break in and have sex with her. And I indeed told her, 'No, they're real cops out there.'”
Moore had previously filed a suit alleging sexual harassment by her landlord.
Smith said he left the scene and called 911 on his way to Arcata. He told a dispatcher that Moore would surrender if she was brought some cigarettes.
”The lady doesn't want to die,” Smith said he told her. “She just wants me to bring her a cigarette and I can walk her down.”
The dispatcher transferred him to Eureka dispatch. When Smith got back to Eureka, he testified, he told Officer Wayne Cox that Moore wanted cigarettes, and felt there was some hope the situation would end peacefully.
Other testimony suggested Moore may have been suicidal for some time. Fellow resident and friend Brenda Bernier said Moore would sometimes get agitated, and she would calm her down. Bernier said she didn't know anything was wrong that day until she saw officers approaching Moore's apartment door, and learned that Moore had a flare gun and had threatened to burn down the building.
After otherwise general testimony, Gallegos thanked her for testifying. Then Bernier said something that seemed to surprise the DA and the jurors.
”The only thing that she told me is she would never leave the apartment alive,” Bernier said.
Bernier added that Moore had told her that before April 14, 2006, when she was reportedly having trouble with her landlord.
Detective Neil Hubbard said that when his crew went to investigate the shooting scene, he found some particles, and a small burn mark, on the floor outside Moore's apartment door which were later determined to be from a misfire of a less-than-lethal weapon one of the SWAT officers had been carrying. He also found a note taped to her door, or on the floor near the door, and read the text to the court.
”My friend sits in the camp chair when I leave the house. Now this is -- you'll have a legal registered 9 mm pointed at you and we can legally shoot you. Not hard to miss. Don't know -- you don't know me. Cheri is not stupid and good aim,” the note read, Hubbard said.
But he also said there were several other scribbled notes strewn around the apartment.
John Driscoll can be reached at 441-0504 or jdriscoll@times-standard.com.
John Driscoll/The Times-Standard
Article Launched: 02/28/2008 01:24:35 AM PST
Friends of Cheri Lyn Moore questioned during grand jury proceedings that led to charges of involuntary manslaughter against top Eureka police officials seem to disagree over whether her death might have been, as a defense expert insisted, suicide by cop.
An expert provided by Lt. Tony Zanotti, SWAT team commander on April 14, 2006, told the grand jury that Moore showed a number of signs that she was suicidal and that she intended for police to kill her. Expert George Williams said that any non-suicidal suspect faced with three armed policemen would have surrendered.
”The police weren't out there fishing for this,” Williams told the grand jury under questioning by Humboldt County District Attorney Paul Gallegos. “She initiated this action.”
Zanotti and former Police Chief Dave Douglas were brought up on involuntary manslaughter charges stemming from the 2006 incident after a criminal grand jury found the SWAT team acted without warrants and failed to adequately supervise the operation.
Moore was shot dead by officers who stormed her apartment after a 2 1/2-hour standoff, during which Moore threw objects out her window, brandished a flare gun, made threats and blared music.
Moore had called county mental health workers who alerted police to her threats to burn down her apartment building at 516 G St. She was reportedly despondent over the anniversary of her son's death and agitated from not taking her medication.
Moore may also have been gravely confused over the police activity that was unfolding around her. Moore's friend Marcus
Smith told the grand jury he talked to Moore several times that day. He was on a cell phone with Moore as police were arriving, and was later told by a member of the negotiating team to hang up.
”And she didn't believe that they were real cops out there,” Smith said. “She thought it was the landlord trying to break in and have sex with her. And I indeed told her, 'No, they're real cops out there.'”
Moore had previously filed a suit alleging sexual harassment by her landlord.
Smith said he left the scene and called 911 on his way to Arcata. He told a dispatcher that Moore would surrender if she was brought some cigarettes.
”The lady doesn't want to die,” Smith said he told her. “She just wants me to bring her a cigarette and I can walk her down.”
The dispatcher transferred him to Eureka dispatch. When Smith got back to Eureka, he testified, he told Officer Wayne Cox that Moore wanted cigarettes, and felt there was some hope the situation would end peacefully.
Other testimony suggested Moore may have been suicidal for some time. Fellow resident and friend Brenda Bernier said Moore would sometimes get agitated, and she would calm her down. Bernier said she didn't know anything was wrong that day until she saw officers approaching Moore's apartment door, and learned that Moore had a flare gun and had threatened to burn down the building.
After otherwise general testimony, Gallegos thanked her for testifying. Then Bernier said something that seemed to surprise the DA and the jurors.
”The only thing that she told me is she would never leave the apartment alive,” Bernier said.
Bernier added that Moore had told her that before April 14, 2006, when she was reportedly having trouble with her landlord.
Detective Neil Hubbard said that when his crew went to investigate the shooting scene, he found some particles, and a small burn mark, on the floor outside Moore's apartment door which were later determined to be from a misfire of a less-than-lethal weapon one of the SWAT officers had been carrying. He also found a note taped to her door, or on the floor near the door, and read the text to the court.
”My friend sits in the camp chair when I leave the house. Now this is -- you'll have a legal registered 9 mm pointed at you and we can legally shoot you. Not hard to miss. Don't know -- you don't know me. Cheri is not stupid and good aim,” the note read, Hubbard said.
But he also said there were several other scribbled notes strewn around the apartment.
John Driscoll can be reached at 441-0504 or jdriscoll@times-standard.com.
John Driscoll/The Times-Standard
Article Launched: 02/28/2008 01:24:35 AM PST
2.27.2008
‘Fatal funnel’ for law enforcement in Cheri Lyn Moore stand off
Last November, during the criminal grand jury investigation into the death of Cheri Lyn Moore, Eureka Police Department Detective and acting SWAT team commander Todd Wilcox referred to Moore’s doorway as the “fatal funnel in law enforcement.”
“We don’t know what’s inside,” he said.
EPD Officer and SWAT assistant team-leader Rodrigo Reyna-Sanchez told the grand jury that SWAT was acting as an arrest-react team when they entered Moore’s apartment.
The rules of engagement — according to EPD policy — are not to use lethal force unless necessary to protect a hostage, innocent bystanders, the police or the suspect, he said.
According to the officers who testified, Moore had threatened citizens with fire and the police by pointing her flare gun at them.
At 12:33 p.m. on April 14, 2006 — the day Moore was killed — EPD Officer Robert Mengel radioed to SWAT that Moore’s hands were empty. Sanchez breached the door, and four armed EPD officers entered.
Officer Rocky Harpham entered first with a Benelli semiautomatic 12-gauge shotgun — followed by Sgt. Mike Johnson, carrying an AR15 rifle.
Officer Tim Jones was next with a FN303 less-lethal kinetic energy projectile, and Officer Terrance Liles — also carrying a Benelli — entered fourth. After grabbing a handgun, Sanchez followed.
Humboldt County District Attorney Paul Gallegos asked why the team had maximum firepower up-front.
“It’s a credible threat and we want to go in there behind as much firepower as we can to protect ourselves,” Sanchez said.
Jones testified that a long gun — such as a rifle or shotgun — has a better chance of stopping a threat more quickly.
Gallegos asked why the less-lethal weapon wasn’t fired first.
“(Using a less-lethal weapon without lethal cover) really puts the less-lethal operator at risk of losing his-or-her life or being injured,” Jones said. “Commands had been given, but at the time when she pointed (the weapon) at us, we were kind of out-of-time at that
point, in fear for our safety.”
On Dec. 3, the grand jury handed up indictments for then-acting EPD Chief David Douglas and Lt. Antonio Zanotti, incident commander, determining that their actions may have been negligent — resulting in manslaughter. No charges have yet been filed against either.
Gallegos questioned why SWAT entered Moore’s apartment before negotiations were exhausted.
EPD Dispatcher Keziah Moss testified that Humboldt County Department of Health and Human Services - Mental Health Branch employee Craig Pasquini requested a welfare check on Moore that day.
The EPD routinely performs welfare checks on MHB patients when the public or another agency is concerned about their welfare.
Moss testified that Pasquini told her, “(Moore) was despondent over — suicidal over — the death of her son 12 years ago (and) that she had purchased a 12-gauge flare gun. ... She (Moore) was threatening to burn down the building and kill everyone inside.”
The SWAT team was not informed that EPD conducted a welfare check on Moore four days earlier, or other information about her welfare, such as threats to burn down the building down on Mothers’ Day.
Individual officers were aware of Moore’s behavior and health based on their own experiences, not information that the Crisis Negotiation Team provided.
Harpham told the grand jury that he was not aware that Moore intended to go to a court hearing at 1 p.m. that day. Nor did he know that Moore’s friend had delivered cigarettes to the EPD that she had requested.
“Did you understand that Ms. Moore had indicated that if she was provided those cigarettes she would come out peacefully?” Gallegos asked.
Harpham replied, no.
Would the information about Moore wanting cigarettes and to make a court appearance at 1 p.m. have been helpful information in formulating a plan? Gallegos asked Sanchez.
“If we had gotten that information, we would have incorporated that into our plans,” Sanchez said.
Sanchez testified that the CNT information was given to Zanotti, and he gives it to Wilcox — who informs the SWAT team.
Gallegos asked CNT supervisor Lt. Lynne Soderberg, if there were any attempts to tell Moore that her cigarettes had arrived before the SWAT team went in.
“I don’t believe we had any communication with her to be able to start that,” Soderberg said. She testified that postponing the plan until that was communicated was not an option.
In other stand-offs, when the suspect had put their handgun down, negotiations continued and SWAT did not enter, Soderberg said, according to the transcripts. This case was different because of the threat of fire, she said.
Wilcox’s testimony mirrored that statement. Even if he knew Moore planned on attending court, the plan to enter when she put the gun down would have stood, he said, according to the transcripts.
“We were trying to deal with what we felt was an emergency potential threat,” Wilcox told the grand jury.
Despite how negotiations were going, the plan was for SWAT to enter the building because Moore’s threats affected innocent citizens, and she had threatened police during the welfare check, according to several officers’ testimonies.
“We essentially were ready to go regardless of what the negotiations are,” Sanchez said, according to the transcripts.
Harpham testified that he didn’t think SWAT needed a warrant to enter Moore’s apartment, based on his understanding of Penal Code 835 (A).
“If a peace officer has a reasonable suspicion that a crime has occurred, he is allowed to use reasonable force to effect an arrest,” he said.
Under the circumstances, the EPD felt they had a hot pursuit situation, Harpham continued. A hot pursuit is an exigent circumstance where the Supreme Court has said that officers don’t need a warrant, he explained to the grand jury.
When the EPD arrived to conduct a welfare check that morning, Moore’s landlord unlocked her door for them, and according to several officers’ testimonies, she pointed the flare gun at them.
“They had a firearm brandished at them which was a serious felony,” Harpham testified.
By EMILY WILSON, The Eureka Reporter
Published: Feb 26 2008, 11:19 PM
List of Cheri Moore related coverage with links
here
Last November, during the criminal grand jury investigation into the death of Cheri Lyn Moore, Eureka Police Department Detective and acting SWAT team commander Todd Wilcox referred to Moore’s doorway as the “fatal funnel in law enforcement.”
“We don’t know what’s inside,” he said.
EPD Officer and SWAT assistant team-leader Rodrigo Reyna-Sanchez told the grand jury that SWAT was acting as an arrest-react team when they entered Moore’s apartment.
The rules of engagement — according to EPD policy — are not to use lethal force unless necessary to protect a hostage, innocent bystanders, the police or the suspect, he said.
According to the officers who testified, Moore had threatened citizens with fire and the police by pointing her flare gun at them.
At 12:33 p.m. on April 14, 2006 — the day Moore was killed — EPD Officer Robert Mengel radioed to SWAT that Moore’s hands were empty. Sanchez breached the door, and four armed EPD officers entered.
Officer Rocky Harpham entered first with a Benelli semiautomatic 12-gauge shotgun — followed by Sgt. Mike Johnson, carrying an AR15 rifle.
Officer Tim Jones was next with a FN303 less-lethal kinetic energy projectile, and Officer Terrance Liles — also carrying a Benelli — entered fourth. After grabbing a handgun, Sanchez followed.
Humboldt County District Attorney Paul Gallegos asked why the team had maximum firepower up-front.
“It’s a credible threat and we want to go in there behind as much firepower as we can to protect ourselves,” Sanchez said.
Jones testified that a long gun — such as a rifle or shotgun — has a better chance of stopping a threat more quickly.
Gallegos asked why the less-lethal weapon wasn’t fired first.
“(Using a less-lethal weapon without lethal cover) really puts the less-lethal operator at risk of losing his-or-her life or being injured,” Jones said. “Commands had been given, but at the time when she pointed (the weapon) at us, we were kind of out-of-time at that
point, in fear for our safety.”
On Dec. 3, the grand jury handed up indictments for then-acting EPD Chief David Douglas and Lt. Antonio Zanotti, incident commander, determining that their actions may have been negligent — resulting in manslaughter. No charges have yet been filed against either.
Gallegos questioned why SWAT entered Moore’s apartment before negotiations were exhausted.
EPD Dispatcher Keziah Moss testified that Humboldt County Department of Health and Human Services - Mental Health Branch employee Craig Pasquini requested a welfare check on Moore that day.
The EPD routinely performs welfare checks on MHB patients when the public or another agency is concerned about their welfare.
Moss testified that Pasquini told her, “(Moore) was despondent over — suicidal over — the death of her son 12 years ago (and) that she had purchased a 12-gauge flare gun. ... She (Moore) was threatening to burn down the building and kill everyone inside.”
The SWAT team was not informed that EPD conducted a welfare check on Moore four days earlier, or other information about her welfare, such as threats to burn down the building down on Mothers’ Day.
Individual officers were aware of Moore’s behavior and health based on their own experiences, not information that the Crisis Negotiation Team provided.
Harpham told the grand jury that he was not aware that Moore intended to go to a court hearing at 1 p.m. that day. Nor did he know that Moore’s friend had delivered cigarettes to the EPD that she had requested.
“Did you understand that Ms. Moore had indicated that if she was provided those cigarettes she would come out peacefully?” Gallegos asked.
Harpham replied, no.
Would the information about Moore wanting cigarettes and to make a court appearance at 1 p.m. have been helpful information in formulating a plan? Gallegos asked Sanchez.
“If we had gotten that information, we would have incorporated that into our plans,” Sanchez said.
Sanchez testified that the CNT information was given to Zanotti, and he gives it to Wilcox — who informs the SWAT team.
Gallegos asked CNT supervisor Lt. Lynne Soderberg, if there were any attempts to tell Moore that her cigarettes had arrived before the SWAT team went in.
“I don’t believe we had any communication with her to be able to start that,” Soderberg said. She testified that postponing the plan until that was communicated was not an option.
In other stand-offs, when the suspect had put their handgun down, negotiations continued and SWAT did not enter, Soderberg said, according to the transcripts. This case was different because of the threat of fire, she said.
Wilcox’s testimony mirrored that statement. Even if he knew Moore planned on attending court, the plan to enter when she put the gun down would have stood, he said, according to the transcripts.
“We were trying to deal with what we felt was an emergency potential threat,” Wilcox told the grand jury.
Despite how negotiations were going, the plan was for SWAT to enter the building because Moore’s threats affected innocent citizens, and she had threatened police during the welfare check, according to several officers’ testimonies.
“We essentially were ready to go regardless of what the negotiations are,” Sanchez said, according to the transcripts.
Harpham testified that he didn’t think SWAT needed a warrant to enter Moore’s apartment, based on his understanding of Penal Code 835 (A).
“If a peace officer has a reasonable suspicion that a crime has occurred, he is allowed to use reasonable force to effect an arrest,” he said.
Under the circumstances, the EPD felt they had a hot pursuit situation, Harpham continued. A hot pursuit is an exigent circumstance where the Supreme Court has said that officers don’t need a warrant, he explained to the grand jury.
When the EPD arrived to conduct a welfare check that morning, Moore’s landlord unlocked her door for them, and according to several officers’ testimonies, she pointed the flare gun at them.
“They had a firearm brandished at them which was a serious felony,” Harpham testified.
By EMILY WILSON, The Eureka Reporter
Published: Feb 26 2008, 11:19 PM
List of Cheri Moore related coverage with links
here
2.24.2008
TS - Police commanders' defense to file motion for dismissal
Police commanders' defense to file motion for dismissal
Defense attorneys for former Eureka Police Chief David Douglas and Lt. Tony Zanotti weighed in last week on what they perceive to be flaws in the case against their clients, and their intent to file multiple motions to dismiss the case in the near future.
The two defendants were indicted Dec. 3 by a criminal grand jury on charges of involuntary manslaughter stemming from their decision making roles in an April 2006 standoff, which left 48-year-old Cheri Lyn Moore riddled with police bullets.
Transcripts of the grand jury proceedings -- unsealed by a superior court judge this week after a series of legal motions on behalf of the Times-Standard -- show District Attorney Paul Gallegos' case hinges in part on the defendants' having failed to get a Ramey warrant before entering Moore's apartment and the concept of criminal negligence.
The defense argued against the judge's unsealing the documents, saying Gallegos' instructions to the grand jury contained erroneous statements of law that could prejudice the entire jury pool if widely disseminated. Friday, William Rapoport, Zanotti's attorney, and Bill Bragg, who is representing Douglas, elaborated on their stance.
”You have bad law being argued to citizens by the chief law enforcement officer in the county [Gallegos], so citizens are bound to think he knows what he's talking about,” Rapoport said, adding that a variety “fundamental” and “esoteric” errors
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in Gallegos' interpretation of the law would be the subject of an upcoming motion to dismiss by the defendants.
Bragg said Friday one of the larger flaws in Gallegos' argument is that he fails to thoroughly instruct the jury on the topic of exigent circumstances, or whether the standoff situation posed a grave and immediate enough threat to the community to justify forcing a warrant-less entry into Moore's apartment.
Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, brandished a flare gun at officers, threw things out of her second-story apartment window and threatened to burn the building down during the two-hour standoff that preceded her April 14, 2006 death.
Officers have said they believed Moore had 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.
While instructing the grand jury, Gallegos calls into question whether such exigent circumstances really existed.
That police set up the SWAT command center in the same building, failed to fully evacuate the building and didn't evacuate adjacent buildings, Gallegos said, shows the police did not perceive Moore as an imminent threat.
”These are things which you can all consider to determine whether they thought there was a risk that this building was going to suddenly burn down and they needed to get in there,” Gallegos told the jury. “That is important because if you don't need to get in there, there are no exigent circumstances.”
Bragg said Friday Gallegos failed to instruct the jury explicitly on what exigent circumstances are, and how they are evaluated by a SWAT team operation.
”My recollection is that there was nothing represented to the grand jury as to what the standard of care would be in a SWAT response scenario,” Bragg said.
Drawing a parallel to medical malpractice cases, Bragg said SWAT operations are so far out of an average juror's knowledge base that Gallegos needed to provide a SWAT team standard for the jury to compare the Eureka team's actions against.
The question, Bragg said, is not just what the jurors would have done in their shoes, but what another, rational, trained professional would do in their shoes.
”There has to be some evidence presented for what the standard of care is for that particular profession, and the instance in which that professional was operating,” Bragg said. “There are standards for SWAT conduct, and there are experts in SWAT procedures out there that could have been presented.”
The general topic of experts is also a point of contention for the defense.
Gallegos called expert witness George Williams to testify during the proceedings. Williams, a police training specialist, called the case a “clear case of suicide by cop,” and went on to call the SWAT operation “extraordinarily” well handled.
In his concluding grand jury instructions, Gallegos tears apart Williams credentials as an expert, and essentially asks the grand jury to disregard the expert witness' testimony.
”This is a gentleman who has never been a police officer,” Gallegos told the jury. “He has never been a SWAT officer. He has never been in a supervisory role that we are aware of. He was 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, and that is the appropriateness and the decision making of the supervisorial staff, Chief Douglas and Lt. Zanotti on April 14, 2006.”
Bragg and Rapoport seemed to disagree on why Gallegos called Williams to testify. Bragg said it was based on Rapoport's suggestion, and Rapoport said it was because Williams had submitted a report to the coroner's office on the case. Either way, both agreed that if Gallegos didn't think Williams was a qualified expert witness, the district attorney should have called someone else.
”There in fact should be someone who is qualified,” Bragg said. “If (Gallegos) felt that fellow wasn't qualified, why didn't he bring in someone he did feel was qualified to discuss SWAT procedures so the grand jury could have had a better understanding?”
Declining to elaborate too much on the defense strategy, saying he wanted to try the case in the courtroom and not in the newspapers, Rapoport said Williams' testimony will also be the subject of a future motion to dismiss the case.
”The DA chooses his witness,” Rapoport said. “He obviously did in this case. ... That's something that again is going to be the subject of a legal motion in the future.”
Thadeus Greenson/The Times-Standard
Article Launched: 02/24/2008 01:34:12 AM PST
Defense attorneys for former Eureka Police Chief David Douglas and Lt. Tony Zanotti weighed in last week on what they perceive to be flaws in the case against their clients, and their intent to file multiple motions to dismiss the case in the near future.
The two defendants were indicted Dec. 3 by a criminal grand jury on charges of involuntary manslaughter stemming from their decision making roles in an April 2006 standoff, which left 48-year-old Cheri Lyn Moore riddled with police bullets.
Transcripts of the grand jury proceedings -- unsealed by a superior court judge this week after a series of legal motions on behalf of the Times-Standard -- show District Attorney Paul Gallegos' case hinges in part on the defendants' having failed to get a Ramey warrant before entering Moore's apartment and the concept of criminal negligence.
The defense argued against the judge's unsealing the documents, saying Gallegos' instructions to the grand jury contained erroneous statements of law that could prejudice the entire jury pool if widely disseminated. Friday, William Rapoport, Zanotti's attorney, and Bill Bragg, who is representing Douglas, elaborated on their stance.
”You have bad law being argued to citizens by the chief law enforcement officer in the county [Gallegos], so citizens are bound to think he knows what he's talking about,” Rapoport said, adding that a variety “fundamental” and “esoteric” errors
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in Gallegos' interpretation of the law would be the subject of an upcoming motion to dismiss by the defendants.
Bragg said Friday one of the larger flaws in Gallegos' argument is that he fails to thoroughly instruct the jury on the topic of exigent circumstances, or whether the standoff situation posed a grave and immediate enough threat to the community to justify forcing a warrant-less entry into Moore's apartment.
Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, brandished a flare gun at officers, threw things out of her second-story apartment window and threatened to burn the building down during the two-hour standoff that preceded her April 14, 2006 death.
Officers have said they believed Moore had 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.
While instructing the grand jury, Gallegos calls into question whether such exigent circumstances really existed.
That police set up the SWAT command center in the same building, failed to fully evacuate the building and didn't evacuate adjacent buildings, Gallegos said, shows the police did not perceive Moore as an imminent threat.
”These are things which you can all consider to determine whether they thought there was a risk that this building was going to suddenly burn down and they needed to get in there,” Gallegos told the jury. “That is important because if you don't need to get in there, there are no exigent circumstances.”
Bragg said Friday Gallegos failed to instruct the jury explicitly on what exigent circumstances are, and how they are evaluated by a SWAT team operation.
”My recollection is that there was nothing represented to the grand jury as to what the standard of care would be in a SWAT response scenario,” Bragg said.
Drawing a parallel to medical malpractice cases, Bragg said SWAT operations are so far out of an average juror's knowledge base that Gallegos needed to provide a SWAT team standard for the jury to compare the Eureka team's actions against.
The question, Bragg said, is not just what the jurors would have done in their shoes, but what another, rational, trained professional would do in their shoes.
”There has to be some evidence presented for what the standard of care is for that particular profession, and the instance in which that professional was operating,” Bragg said. “There are standards for SWAT conduct, and there are experts in SWAT procedures out there that could have been presented.”
The general topic of experts is also a point of contention for the defense.
Gallegos called expert witness George Williams to testify during the proceedings. Williams, a police training specialist, called the case a “clear case of suicide by cop,” and went on to call the SWAT operation “extraordinarily” well handled.
In his concluding grand jury instructions, Gallegos tears apart Williams credentials as an expert, and essentially asks the grand jury to disregard the expert witness' testimony.
”This is a gentleman who has never been a police officer,” Gallegos told the jury. “He has never been a SWAT officer. He has never been in a supervisory role that we are aware of. He was 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, and that is the appropriateness and the decision making of the supervisorial staff, Chief Douglas and Lt. Zanotti on April 14, 2006.”
Bragg and Rapoport seemed to disagree on why Gallegos called Williams to testify. Bragg said it was based on Rapoport's suggestion, and Rapoport said it was because Williams had submitted a report to the coroner's office on the case. Either way, both agreed that if Gallegos didn't think Williams was a qualified expert witness, the district attorney should have called someone else.
”There in fact should be someone who is qualified,” Bragg said. “If (Gallegos) felt that fellow wasn't qualified, why didn't he bring in someone he did feel was qualified to discuss SWAT procedures so the grand jury could have had a better understanding?”
Declining to elaborate too much on the defense strategy, saying he wanted to try the case in the courtroom and not in the newspapers, Rapoport said Williams' testimony will also be the subject of a future motion to dismiss the case.
”The DA chooses his witness,” Rapoport said. “He obviously did in this case. ... That's something that again is going to be the subject of a legal motion in the future.”
Thadeus Greenson/The Times-Standard
Article Launched: 02/24/2008 01:34:12 AM PST
2.22.2008
TS - Judge continues Douglas-Zanotti arraignment
Judge continues Douglas-Zanotti arraignment
Superior Court Judge Timothy Cissna agreed Thursday to continue the arraignment of former Eureka Police Chief David Douglas and Lt. Tony Zanotti on involuntary manslaughter charges for the shooting death of Cheri Lyn Moore until April 1.
Deputy District Attorney Maggie Fleming said District Attorney Paul Gallegos and the defense agreed to the continuation to give the defense time to receive and review copies of the evidence exhibits presented during the criminal grand jury proceedings.
Meanwhile, experts on law and police procedure gave the Times-Standard their views about the case, and information contained in recently unsealed transcripts of the grand jury proceedings that led to the indictment of the two commanding officers.
The District Attorney's Office officially announced on Dec. 10 that the criminal grand jury convened to look into the April 14, 2006 police shooting death of Moore indicted Douglas and Zanotti for their decision-making roles in the incident.
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 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 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.
Nearly two dozen uniformed officers were on hand for Douglas and Zanotti's court appearance, in addition to a handful of Eureka city officials, including Mayor Virginia Bass and City Manager David Tyson. Almost every seat in the courtroom was taken.
The two defendants were briskly escorted through the hallway and into the courtroom prior to the hearing, and left immediately after its conclusion.
Cissna presided over Thursday's hearing, but made clear it is Superior Court Judge John Feeney's case.
”I will not handle this case -- I'm handling the arraignment because my colleague is sick,” Cissna said, adding that he otherwise would disqualify himself, as he has known Douglas for years.
Gallegos' case
Transcripts from the grand jury proceedings, obtained Tuesday by the Times-Standard after Feeney granted the paper's motion to unseal the nearly 2,000 document, indicate Gallegos' case hinges on the SWAT team's decision not to get a Ramey warrant before entering Moore's apartment, and the concept of criminal negligence.
A Ramey warrant is issued before a suspect is charged with a crime, sometimes with the intent to get more evidence on a suspected crime. It is a warrant issued by a judge, and does not require a case to be sent to a prosecutor first.
While instructing the grand jury on how to consider whether to indict Douglas and Zanotti, Gallegos raises the subject of a welfare check, where officers can legally enter a residence to check on a person's well-being.
”If they have to break in your door to get you, we want them to do that,” Gallegos told the jury. “But, if their objective is to arrest an individual or to seize evidence, the United States Constitution puts a requirement on them.”
In this case, Gallegos argues that requirement is a Ramey warrant.
Gallegos also spends a good portion of his instructions to the grand jury going over the concept of criminal negligence.
”A person acts with criminal negligence when he or she acts in a reckless way that creates a high risk of death or great bodily injury, and a reasonable person would have known that acting that way would create such a risk,” Gallegos told the jury.
Gallegos goes on to state his belief that a reasonable person would conclude that sending officers into Moore's apartment would create a “high risk of death or great bodily injury.”
Taking on the concept of exigent circumstances, or the idea that the situation represented a grave and immediate danger to the community, Gallegos tells the jury that the police made a variety of decisions on April 14, 2006 that show that was not the case. Police actions that day, Gallegos argues, show police commanders did not believe the threat of a flare-ignited fire to be grave.
That police set up the SWAT command center in the same building, failed to fully evacuate the building and didn't evacuate adjacent buildings, Gallegos said, shows the police did not perceive Moore as an imminent threat.
”These are things which you can all consider to determine whether they thought there was a risk that this building was going to suddenly burn down and they need to get in there,” Gallegos told the jury. “That is important because if you don't need to suddenly get in there, there are no exigent circumstances.”
Defense attorneys Bill Bragg and William Rapoport were not immediately available for comment.
A police perspective
Police experts interviewed by the Times-Standard offered different opinions on how the circumstances of the Moore standoff played out, and whether commanders should have sought a warrant.
Ronald R. Scott, a former commanding officer of the Massachusetts State Police Ballistics Section who has spent 25 years investigating shootings and police-related shootings, said seeking a warrant may have allowed a higher authority to raise concerns about how police wanted to proceed.
He questioned how concerned police were about a fire and why the SWAT team was ordered into the apartment before negotiations were considered over. Scott said it is impossible to know, however, if the outcome would be any different if a warrant had been obtained.
”I just think it's a small step that could have possibly influenced what the commander on the scene did,” Scott said.
One of the cases Gallegos used in his arguments to the grand jury was a hostage scenario that unfolded in Fortuna in September 2005. Michael Allman was barricaded in his Newell Drive home along with his young son. Fortuna Police first responded, then the Eureka SWAT team arrived, and later the county SWAT team. After about 12 hours, Allman released the boy, but the standoff lasted almost another 20 hours.
Officers were unable to see Allman inside the house, Fortuna Police Chief Kris Kitna testified before the grand jury, and determined it was too dangerous to enter the residence. Sometime after the boy was released, Kitna and other law enforcement officials decided to get a Ramey warrant to enter the house. When the SWAT team went inside, they found Allman dead, shot by his own gun.
Kitna also said there are circumstances in which police can enter without a warrant.
”Certainly we can enter without the warrant under exigent circumstances, when it is life or death or when evidence is being destroyed, but normally you need that Ramey warrant to enter absent any special circumstances,” Kitna said.
The Fortuna case is substantially different than the Moore case, and experts disagree about whether special circumstances existed during the Eureka standoff.
Lou Reiter has been a consultant on police misconduct for 27 years, and is a former deputy chief of the Los Angeles Police Department, now based in Rhode Island. He said the Eureka case is strange because of the criminal charges being brought, and questioned what could be criminal about inadequate supervision. There are civil remedies in those types of cases, he said.
To prosecute the commanding officers, Reiter said, it would seem that the district attorney would have to convince a jury that they directly ordered the SWAT officers to kick in Moore's door and shoot her.
A warrant is not usually obtained in the early hours of a standoff, he said.
”For the most part it's rarely done, particularly when you're dealing with an emotionally disturbed person,” Reiter said.
A legal perspective
University of California Hastings College of Law professor David Levine said he's often heard of similar cases being dealt with in civil and administrative arenas, but criminal charges are a different ball game.
”It just seems to me when it's criminal, you really want to be able to point to chapter and verse and say, 'No good police officer would do X, Y and Z,” Levine said.
The decision not to get a warrant, Levine said, amounts to a judgment call -- one that can certainly be second-guessed, but one that will be hard to prove is a criminal act.
While Levine said it sounds like commanding officers could have better handled the events of that April day, he said the prosecution will likely have to show that the defendants showed a conscious disregard of the risks of their actions -- no easy task. Levine said judgment calls that appear poor in hindsight probably won't cut it.
”Without being an expert in police procedure, it just seems like it's really hard to second guess something like that,” he said.
Levine said it is far more common for officers to be criminally charged when it's clear they acted with malice.
As an example, he pointed to a 1997 New York case where officers were convicted after they pinned down a man in a New York precinct and sodomized him with a broomstick. In that case, two officers were convicted of assault and four were convicted of lying to investigators.
Another example Levine pointed to was a 1999 case where a criminal grand jury returned second degree murder and reckless endangerment indictments against officers who fired 41 shots at an unarmed New York man, hitting him 19 times. Those officers were acquitted of all charges, but the case garnered widespread public outrage.
”Those are the kinds of extreme cases that lead to criminal charges,” Levine said.
University of Nebraska at Omaha Criminal Justice professor emeritus Samuel Walker, an expert on police accountability, said it sounds like officers could have done a lot of things differently, but also questioned whether the case belonged in the criminal arena.
”Criminal conviction of a police officer is very difficult to achieve in any event, unless it's a corruption charge where you can prove that money went from one hand to another,” Walker said.
John Driscoll and Thadeus Greenson/The Times-Standard
Article Launched: 02/22/2008 01:31:03 AM PST
ER - Arraignment continued second time, charges exposed
Arraignment continued second time, charges exposed
The arraignment scheduled on Thursday in the Humboldt County Courthouse for former Eureka Police Department Chief David Douglas and EPD Lt. Antonio Zanotti was continued until April 1.
Their original arraignment date was set for Jan. 1, but it was continued until Feb. 21 — when it was continued again.
When arraigned, defendants are read the charges against them and enter a plea. A not-guilty plea activates a citizen’s right to a trial by their peers.
A Humboldt County criminal grand jury handed up an indictment for Douglas and Zanotti on Dec. 3 — accusing them of involuntary manslaughter — an alleged violation of Penal Code Section 192 (b) — for their leadership roles in the death of Cheri Lyn Moore on April 14, 2006.
Douglas’ attorney, Bill Bragg and Zanotti’s attorney, William Rapoport requested the continuance because they have not received more than 100 exhibits admitted to the grand jury as evidence.
The majority of men and women in the packed courtroom indicated they were in support of the defendants — many wore law enforcement uniforms with some displaying badges.
EPD Sgt. Steve Watson was present during Moore’s death and said he was in court to support the defendants.
Speaking for all the uniformed officers he said, “They have our absolute support — without a doubt.”
Presiding Superior Court Judge Timothy P. Cissna granted the continuance to give the defense time to review all the evidence.
Deputy District Attorney Maggie Fleming — representing District Attorney Paul Gallegos — did not object.
EPD Chief Garr Nielsen said he doesn’t think the case will make it trial. “I don’t believe that the case is strong enough to warrant going to trial,” he said.
The judge may throw the case out at any time.
Transcripts from the grand jury investigation — unsealed Tuesday — include more than 1,600 pages of testimony that took place over about 10 days last fall.
Nielsen said he agreed with the defense who argued Tuesday against unsealing the portion of the transcripts where Gallegos’ instructed the jury and explained how the law applies.
Bragg wrote in a court document, “Coverage of erroneous statements of the law given by the district attorney without immediate and accurate rebuttal from an authoritative figure could very well impact my client’s ability to get a fair trial in his community.”
In a grand jury proceeding, the jury does not hear from the defense council.
According to the transcripts, Gallegos alleged that Douglas and/or Zanotti committed three acts with criminal negligence and two crimes.
The first act allegedly committed with criminal negligence, was failing to adequately supervise or direct the EPD SWAT team members in relation to Moore — a barricaded subject.
The second act alleged against the defendants is failing to adequately supervise the EPD Crisis Negotiation Team.
The third states that they failed to provide adequate communication between the EPD, SWAT and CNT — to enable them to plan and/or prepare how to respond to Moore.
Gallegos explained that a person acts with criminal negligence when their actions are so different from the way an ordinarily careful person would act in the same situation that his or her acts amount to a disregard for human life or indifference to the consequences of
that act.
The first alleged crime reportedly committed by the defendants is unauthorized destruction of property — a misdemeanor under California Penal Code Section 603.
According to the transcripts, “(It applies) to every person, other than a peace officer engaged in the performance of his duties as such who forcibly and without consent ... enters a dwelling house ... and who damages, injures or destroys any property of value in, around or appertaining to such (a) dwelling. ...”
The second alleged crime is reportedly home invasion, PC 602.5 (a). “(The law states) every person other than a public officer or employee acting within the course and scope of his or her employment in performance of a duty imposed by law, who enters or remains in any ... residential place without the consent of the owner ... or the person in lawful possession thereof is guilty of a misdemeanor.”
“The question is not whether the officers had other alternatives available to them; it is whether or not the officers acted reasonably,” Gallegos told the grand jury, according to the transcripts.
All of the grand jury members had to agree that at least one act was committed to issue an indictment — and jurors had to be in agreement about the same act or acts.
By EMILY WILSON, The Eureka Reporter
Published: Feb 21 2008, 11:34 PM · Updated: Feb 22 2008, 12:10 AM
The arraignment scheduled on Thursday in the Humboldt County Courthouse for former Eureka Police Department Chief David Douglas and EPD Lt. Antonio Zanotti was continued until April 1.
Their original arraignment date was set for Jan. 1, but it was continued until Feb. 21 — when it was continued again.
When arraigned, defendants are read the charges against them and enter a plea. A not-guilty plea activates a citizen’s right to a trial by their peers.
A Humboldt County criminal grand jury handed up an indictment for Douglas and Zanotti on Dec. 3 — accusing them of involuntary manslaughter — an alleged violation of Penal Code Section 192 (b) — for their leadership roles in the death of Cheri Lyn Moore on April 14, 2006.
Douglas’ attorney, Bill Bragg and Zanotti’s attorney, William Rapoport requested the continuance because they have not received more than 100 exhibits admitted to the grand jury as evidence.
The majority of men and women in the packed courtroom indicated they were in support of the defendants — many wore law enforcement uniforms with some displaying badges.
EPD Sgt. Steve Watson was present during Moore’s death and said he was in court to support the defendants.
Speaking for all the uniformed officers he said, “They have our absolute support — without a doubt.”
Presiding Superior Court Judge Timothy P. Cissna granted the continuance to give the defense time to review all the evidence.
Deputy District Attorney Maggie Fleming — representing District Attorney Paul Gallegos — did not object.
EPD Chief Garr Nielsen said he doesn’t think the case will make it trial. “I don’t believe that the case is strong enough to warrant going to trial,” he said.
The judge may throw the case out at any time.
Transcripts from the grand jury investigation — unsealed Tuesday — include more than 1,600 pages of testimony that took place over about 10 days last fall.
Nielsen said he agreed with the defense who argued Tuesday against unsealing the portion of the transcripts where Gallegos’ instructed the jury and explained how the law applies.
Bragg wrote in a court document, “Coverage of erroneous statements of the law given by the district attorney without immediate and accurate rebuttal from an authoritative figure could very well impact my client’s ability to get a fair trial in his community.”
In a grand jury proceeding, the jury does not hear from the defense council.
According to the transcripts, Gallegos alleged that Douglas and/or Zanotti committed three acts with criminal negligence and two crimes.
The first act allegedly committed with criminal negligence, was failing to adequately supervise or direct the EPD SWAT team members in relation to Moore — a barricaded subject.
The second act alleged against the defendants is failing to adequately supervise the EPD Crisis Negotiation Team.
The third states that they failed to provide adequate communication between the EPD, SWAT and CNT — to enable them to plan and/or prepare how to respond to Moore.
Gallegos explained that a person acts with criminal negligence when their actions are so different from the way an ordinarily careful person would act in the same situation that his or her acts amount to a disregard for human life or indifference to the consequences of
that act.
The first alleged crime reportedly committed by the defendants is unauthorized destruction of property — a misdemeanor under California Penal Code Section 603.
According to the transcripts, “(It applies) to every person, other than a peace officer engaged in the performance of his duties as such who forcibly and without consent ... enters a dwelling house ... and who damages, injures or destroys any property of value in, around or appertaining to such (a) dwelling. ...”
The second alleged crime is reportedly home invasion, PC 602.5 (a). “(The law states) every person other than a public officer or employee acting within the course and scope of his or her employment in performance of a duty imposed by law, who enters or remains in any ... residential place without the consent of the owner ... or the person in lawful possession thereof is guilty of a misdemeanor.”
“The question is not whether the officers had other alternatives available to them; it is whether or not the officers acted reasonably,” Gallegos told the grand jury, according to the transcripts.
All of the grand jury members had to agree that at least one act was committed to issue an indictment — and jurors had to be in agreement about the same act or acts.
By EMILY WILSON, The Eureka Reporter
Published: Feb 21 2008, 11:34 PM · Updated: Feb 22 2008, 12:10 AM
2.21.2008
TS - Commanders' arraignment in Moore case continued
Commanders' arraignment in Moore case continued
Superior Court Judge Timothy Cissna agreed today to continue the arraignment of former Eureka Police Chief David Douglas and Lt. Tony Zanotti on involuntary manslaughter charges until April 1.
Deputy District Attorney Maggie Fleming said District Attorney Paul Gallegos and the defense agreed to the continuation before Thursday's arraignment hearing to allow the defense time to receive and review copies of the evidence exhibits presented during the criminal grand jury proceedings.
Fleming said both sides agreed on the April 1 date.
The District Attorney's Office officially announced on Dec. 3 that a criminal grand jury convened to look into the April 14, 2006 police shooting death of Cheri Lyn Moore handed up indictments stemming from Douglas and Zanotti's decision-making roles in the incident.
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 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 had put down the flare gun when the decision was made to storm her apartment but, upon entering, SWAT team members said Moore had the weapon pointed at them. Moore was shot nine times.
The Times-Standard
Article Launched: 02/21/2008 02:25:58 PM PST
Superior Court Judge Timothy Cissna agreed today to continue the arraignment of former Eureka Police Chief David Douglas and Lt. Tony Zanotti on involuntary manslaughter charges until April 1.
Deputy District Attorney Maggie Fleming said District Attorney Paul Gallegos and the defense agreed to the continuation before Thursday's arraignment hearing to allow the defense time to receive and review copies of the evidence exhibits presented during the criminal grand jury proceedings.
Fleming said both sides agreed on the April 1 date.
The District Attorney's Office officially announced on Dec. 3 that a criminal grand jury convened to look into the April 14, 2006 police shooting death of Cheri Lyn Moore handed up indictments stemming from Douglas and Zanotti's decision-making roles in the incident.
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 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 had put down the flare gun when the decision was made to storm her apartment but, upon entering, SWAT team members said Moore had the weapon pointed at them. Moore was shot nine times.
The Times-Standard
Article Launched: 02/21/2008 02:25:58 PM PST
TS Cheri Lyn Moore case: What the grand jury heard
Cheri Lyn Moore case: What the grand jury heard
John Driscoll/The Times-Standard
Article Launched: 02/21/2008 01:27:27 AM PST
The volatile chain of events leading to Cheri Lyn Moore's death in 2006 at the hands of Eureka police is laid out in transcripts of the grand jury proceedings held in November and December, which led to involuntary manslaughter charges against the commanding officers.
One of the leading officers on the SWAT team that stormed into the 48-year-old woman's apartment on April 14, 2006, told grand jurors that plans to handle the tense situation were still being developed when orders were given to move in.
Eureka Detective Todd Wilcox said four initial plans had been generated to deal with the circumstances most likely to arise during the early part of the standoff in which Moore brandished a flare gun. Wilcox was pulled back to the command post in the building just before the SWAT team entered, a little more than two hours into the standoff.
While the team began to formulate plans to better communicate with Moore, a spotter across from her apartment at 516 G St. said Moore had put down the gun, Wilcox said.
That signal was agreed upon as the order to go, he said. The officers used a battering ram to smash in the door, Moore pointed the flare gun at them and was shot to death, according to testimony.
An expert witness testifying on behalf of accused commander Lt. Anthony Zanotti called it a “clear case of suicide by cop.” George Williams testified that Moore's threats and actions leading up to her death are typical of someone intentionally drawing police to a scene and acting in a criminal manner that makes police use deadly force.
Moore was despondent on the anniversary of her son's suicide, had called mental health workers and police, told them she had a flare gun and threatened to blow up the building, Williams said.
”Because when a reasonable person presented with overwhelming force gives up,” Williams answered Humboldt County District Attorney Paul Gallegos, “and she intentionally arms herself and causes this shooting, that's suicidal, sir.”
Wilcox had been to the apartment four days before for a welfare check on Moore, who made unspecified threats that she might burn down the building or a church. He and another officer had pounded on Moore's door, but ended up leaving without incident.
When Gallegos asked Wilcox what was different about how police responded on those two days, Wilcox said Moore had threatened to burn down the building and had pointed a weapon -- the flare gun -- at officers on April 14.
He described those as “exigent circumstances,” that warranted entry into Moore's apartment. Police weren't trained to deal with a fire that might have broken out if the flare gun had been fired, Wilcox said, and he also testified he wasn't entirely confident that firefighters could have responded and doused a fire, either.
Wilcox explained how SWAT officers generally “stack” before entering a residence or room. The first breaches the door, then moves out of the way for officers carrying guns, followed by officers with less-lethal weapons. The reason for this is to ensure that the first officers can respond with deadly force if they are faced with deadly force, he said.
Officer Rocky Harpham was the first man to enter the apartment, carrying a 12-gauge shotgun. Harpham testified that he moved in and saw Moore in the room with her back to him, and the weapon -- the flare gun -- sitting on a table or shelf. He yelled for her to put her hands up, he said. Moore turned around with a look of shock on her face, he testified.
”She picked up the weapon and she started to bring it up to where she could point it at the direction of myself and the rest of the team and when she started to bring the weapon across towards me that is -- or towards where I was at, that is when I began firing,” Harpham testified.
Harpham said that he believed Moore would shoot him and that he had no other option but to shoot.
Harpham and officers Mike Johnson, Rodrigo Sanchez, Tim Jones and Terry Liles were the officers who initially entered Moore's apartment. None of them were indicted by the grand jury, and testified under protection of immunity in the proceedings.
Wilcox also answered Gallegos about the threat of fire to the building. If the threat of fire was so grave, Gallegos asked, why was the SWAT command center set up in the same building? Wilcox answered that it was probably lack of foresight.
Gallegos repeatedly questioned officers and police negotiators about their attempts to contact Moore. Moore had music blaring in the apartment much of the time, and law enforcement repeatedly tried to get her to answer the phone and hold a conversation.
Officers testified that they held a discussion about whether to cut power to the apartment, but decided against it, since it was believed her phone was cordless and required electricity. Gallegos also asked whether commanders considered using a “throw phone” -- a special phone provided to a suspect during negotiations -- or the PA systems on police vehicles to communicate.
County Health and Human Services Director Phil Crandall testified that police never asked for assistance with the situation, but also said there was no mechanism in place to get mental health workers to the scene.
While the building was largely evacuated that day, one neighbor of Moore's was believed to be too sick to be taken out, and remained inside with two female caretakers during the incident. Another witness, neighbor Jeffrey John Hemsted, testified that he was never asked to leave by police, or told there was a threat of fire.
Eureka Fire Capt. Patrick Joseph Lynch told the grand jury that a fire crew had staged a block and a half away, and had been told there was a possibility that a gas line had been broken in the apartment, which could have had dire consequences if Moore had discharged the flare gun.
John Driscoll can be reached at 441-0504 or jdriscoll@times-standard.com.
John Driscoll/The Times-Standard
Article Launched: 02/21/2008 01:27:27 AM PST
The volatile chain of events leading to Cheri Lyn Moore's death in 2006 at the hands of Eureka police is laid out in transcripts of the grand jury proceedings held in November and December, which led to involuntary manslaughter charges against the commanding officers.
One of the leading officers on the SWAT team that stormed into the 48-year-old woman's apartment on April 14, 2006, told grand jurors that plans to handle the tense situation were still being developed when orders were given to move in.
Eureka Detective Todd Wilcox said four initial plans had been generated to deal with the circumstances most likely to arise during the early part of the standoff in which Moore brandished a flare gun. Wilcox was pulled back to the command post in the building just before the SWAT team entered, a little more than two hours into the standoff.
While the team began to formulate plans to better communicate with Moore, a spotter across from her apartment at 516 G St. said Moore had put down the gun, Wilcox said.
That signal was agreed upon as the order to go, he said. The officers used a battering ram to smash in the door, Moore pointed the flare gun at them and was shot to death, according to testimony.
An expert witness testifying on behalf of accused commander Lt. Anthony Zanotti called it a “clear case of suicide by cop.” George Williams testified that Moore's threats and actions leading up to her death are typical of someone intentionally drawing police to a scene and acting in a criminal manner that makes police use deadly force.
Moore was despondent on the anniversary of her son's suicide, had called mental health workers and police, told them she had a flare gun and threatened to blow up the building, Williams said.
”Because when a reasonable person presented with overwhelming force gives up,” Williams answered Humboldt County District Attorney Paul Gallegos, “and she intentionally arms herself and causes this shooting, that's suicidal, sir.”
Wilcox had been to the apartment four days before for a welfare check on Moore, who made unspecified threats that she might burn down the building or a church. He and another officer had pounded on Moore's door, but ended up leaving without incident.
When Gallegos asked Wilcox what was different about how police responded on those two days, Wilcox said Moore had threatened to burn down the building and had pointed a weapon -- the flare gun -- at officers on April 14.
He described those as “exigent circumstances,” that warranted entry into Moore's apartment. Police weren't trained to deal with a fire that might have broken out if the flare gun had been fired, Wilcox said, and he also testified he wasn't entirely confident that firefighters could have responded and doused a fire, either.
Wilcox explained how SWAT officers generally “stack” before entering a residence or room. The first breaches the door, then moves out of the way for officers carrying guns, followed by officers with less-lethal weapons. The reason for this is to ensure that the first officers can respond with deadly force if they are faced with deadly force, he said.
Officer Rocky Harpham was the first man to enter the apartment, carrying a 12-gauge shotgun. Harpham testified that he moved in and saw Moore in the room with her back to him, and the weapon -- the flare gun -- sitting on a table or shelf. He yelled for her to put her hands up, he said. Moore turned around with a look of shock on her face, he testified.
”She picked up the weapon and she started to bring it up to where she could point it at the direction of myself and the rest of the team and when she started to bring the weapon across towards me that is -- or towards where I was at, that is when I began firing,” Harpham testified.
Harpham said that he believed Moore would shoot him and that he had no other option but to shoot.
Harpham and officers Mike Johnson, Rodrigo Sanchez, Tim Jones and Terry Liles were the officers who initially entered Moore's apartment. None of them were indicted by the grand jury, and testified under protection of immunity in the proceedings.
Wilcox also answered Gallegos about the threat of fire to the building. If the threat of fire was so grave, Gallegos asked, why was the SWAT command center set up in the same building? Wilcox answered that it was probably lack of foresight.
Gallegos repeatedly questioned officers and police negotiators about their attempts to contact Moore. Moore had music blaring in the apartment much of the time, and law enforcement repeatedly tried to get her to answer the phone and hold a conversation.
Officers testified that they held a discussion about whether to cut power to the apartment, but decided against it, since it was believed her phone was cordless and required electricity. Gallegos also asked whether commanders considered using a “throw phone” -- a special phone provided to a suspect during negotiations -- or the PA systems on police vehicles to communicate.
County Health and Human Services Director Phil Crandall testified that police never asked for assistance with the situation, but also said there was no mechanism in place to get mental health workers to the scene.
While the building was largely evacuated that day, one neighbor of Moore's was believed to be too sick to be taken out, and remained inside with two female caretakers during the incident. Another witness, neighbor Jeffrey John Hemsted, testified that he was never asked to leave by police, or told there was a threat of fire.
Eureka Fire Capt. Patrick Joseph Lynch told the grand jury that a fire crew had staged a block and a half away, and had been told there was a possibility that a gas line had been broken in the apartment, which could have had dire consequences if Moore had discharged the flare gun.
John Driscoll can be reached at 441-0504 or jdriscoll@times-standard.com.
TS - Douglas, Zanotti set to be arraigned today in Moore shooting
Douglas, Zanotti set to be arraigned today in Moore shooting
Kimberly Wear/The Times-Standard
Article Launched: 02/21/2008 01:32:00 AM PST
District Attorney Paul Gallegos' involuntary manslaughter case against the two officers in charge when Cheri Lyn Moore was killed hinges on whether they should have obtained a warrant before a SWAT team was ordered into her apartment, according to recently unsealed grand jury transcripts.
Gallegos told the grand jury that former Eureka Police Chief David Douglas and Lt. Tony Zanotti ordered an illegal entry into the apartment, and acted with criminal negligence by failing to “adequately supervise” police, SWAT team members and the negotiation team during the April 14, 2006, standoff.
Douglas and Zanotti are scheduled to be arraigned today on charges of involuntary manslaughter.
In order to hand up an indictment of involuntary manslaughter, Gallegos said 12 of the 18 grand jurors needed to find that Douglas and Zanotti committed at least one of those acts. There was probable cause to indict them if there were no exigent circumstances, that it was an unlawful entry and that the entry resulted in Moore's death, Gallegos said.
”Was -- were the acts of Lt. Zanotti and Dave Douglas criminally negligent? This is not standard negligence, civil negligence, you made a mistake,” Gallegos said. “You made a real bad mistake. Criminal negligence is a whole different animal. It is a disregard.”
Moore, who had a history of mental illness, was shot by Eureka police officers in her apartment at Fifth and G streets after a two-hour standoff in which she brandished a flare gun, threw items from her apartment and threatened to burn the building down.
Police have said they believed Moore had put down the flare gun when the decision was made to storm her apartment. When officers came face to face with Moore, who they say had a flare gun pointed at them, they shot her multiple times.
Superior Court Judge John Feeney ordered the transcripts unsealed Tuesday at the request of the Times-Standard, which argued the nearly 2,000 pages of grand jury testimony should be made public.
At the court hearing, attorneys for Douglas and Zanotti said they were open to handing over most of the testimony, but requested nearly 60 pages of Gallegos' instructions and summation be redacted because “in our opinion he horribly misinstructed the grand jurors.”
Feeney ruled in favor of the Times-Standard, opening the entire transcript.
The documents, made up of five sections, cover about 10 days of testimony, Gallegos' closing argument and jury instructions.
In his last words to jurors, Gallegos raised questions about how dire the Moore situation was, why her building and surrounding businesses weren't completely evacuated, whether enough efforts were made to contact Moore or time given to explore options other than storming her apartment after a little more than two hours.
”This is the life and safety of citizens in this community,” he said. “I am not asking you to hold these officers to a standard of perfection. I believe the evidence establishes that -- I believe there is certainly evidence that belies the claim that there was a fear that this building was going to burn up if they did not act.”
Gallegos also compares the Moore case to a Fortuna standoff that lasted 32 hours, saying Fortuna Police Chief Kris Kitna delayed entry, evacuated the surrounding area and obtained a Ramey warrant before entering the house where a hostage had been held by Michael Allman.
”They use gas. They break windows. They use shields. They use a PA system. I can't recall whether Chief Kitna indicated whether he tried to use the throw phone or not. It was a process that lasted 32 hours,” Gallegos said.
”There is something for us to consider, to look at to see what reasonable people do, what a standard might be. It is a double-edge sword though, because what else do we know? We know that Chief Kitna with the Eureka Police Department and the Sheriff's Department and -- they were there for 32 hours or roughly 32 hours, and what happened? Mr. Allman ended up dead,” he said.
The transcripts show jurors handed up the involuntary manslaughter indictment on Dec. 3.
Kimberly Wear can be reached at 441-0507 or kwear@times-standard.com.
Ramey warrant
A Ramey warrant is issued before a suspect is charged with a crime, sometimes with the intent to get more evidence on a suspected crime. It is a warrant issued by a judge, and does not require a case to be sent to a prosecutor first.
A Ramey warrant differs from an arrest warrant. An arrest warrant is issued by a judge after felony or misdemeanor charges have been filed. That means there must be enough evidence for a district attorney or city attorney to file a complaint, and the judge agrees there is probable cause.
BOX:
Unsealing the transcripts
The shooting death of Cheri Lyn Moore by Eureka police on April 14, 2006, rocked the community.
From the beginning, the Times-Standard believed that the case held enormous importance to the public. The newspaper exclusively videotaped the coroner's inquest that looked into her death in an effort to air as much information as possible.
When Humboldt County District Attorney Paul Gallegos announced he'd be taking the case to the grand jury, we petitioned Gallegos to ask the judge to open the proceedings to the public. He argued for that in court, but was turned down by jurors, who needed to approve an open session along with a judge.
When former Police Chief David Douglas and Lt. Anthony Zanotti were indicted by the grand jury, the Times-Standard immediately moved to have the transcripts of the proceedings released, a process that included several hurdles. In the beginning, court officials refused to acknowledge the existence of the case or that an open hearing had been held until the paper directly petitioned Judge John Feeney.
The Times-Standard's legal efforts were led by Roger Myers and his associates at the Holme Roberts & Owen law firm in San Francisco. Myers, a former reporter and editor, is one of California's leading First Amendment lawyers, and is general outside counsel for the California First Amendment Coalition.
The paper was blocked from receiving the records by Douglas and Zanotti's defense team. After repeated motions, the defense largely conceded to our position, and Feeney released the transcripts in their entirety.
Kimberly Wear/The Times-Standard
Article Launched: 02/21/2008 01:32:00 AM PST
District Attorney Paul Gallegos' involuntary manslaughter case against the two officers in charge when Cheri Lyn Moore was killed hinges on whether they should have obtained a warrant before a SWAT team was ordered into her apartment, according to recently unsealed grand jury transcripts.
Gallegos told the grand jury that former Eureka Police Chief David Douglas and Lt. Tony Zanotti ordered an illegal entry into the apartment, and acted with criminal negligence by failing to “adequately supervise” police, SWAT team members and the negotiation team during the April 14, 2006, standoff.
Douglas and Zanotti are scheduled to be arraigned today on charges of involuntary manslaughter.
In order to hand up an indictment of involuntary manslaughter, Gallegos said 12 of the 18 grand jurors needed to find that Douglas and Zanotti committed at least one of those acts. There was probable cause to indict them if there were no exigent circumstances, that it was an unlawful entry and that the entry resulted in Moore's death, Gallegos said.
”Was -- were the acts of Lt. Zanotti and Dave Douglas criminally negligent? This is not standard negligence, civil negligence, you made a mistake,” Gallegos said. “You made a real bad mistake. Criminal negligence is a whole different animal. It is a disregard.”
Moore, who had a history of mental illness, was shot by Eureka police officers in her apartment at Fifth and G streets after a two-hour standoff in which she brandished a flare gun, threw items from her apartment and threatened to burn the building down.
Police have said they believed Moore had put down the flare gun when the decision was made to storm her apartment. When officers came face to face with Moore, who they say had a flare gun pointed at them, they shot her multiple times.
Superior Court Judge John Feeney ordered the transcripts unsealed Tuesday at the request of the Times-Standard, which argued the nearly 2,000 pages of grand jury testimony should be made public.
At the court hearing, attorneys for Douglas and Zanotti said they were open to handing over most of the testimony, but requested nearly 60 pages of Gallegos' instructions and summation be redacted because “in our opinion he horribly misinstructed the grand jurors.”
Feeney ruled in favor of the Times-Standard, opening the entire transcript.
The documents, made up of five sections, cover about 10 days of testimony, Gallegos' closing argument and jury instructions.
In his last words to jurors, Gallegos raised questions about how dire the Moore situation was, why her building and surrounding businesses weren't completely evacuated, whether enough efforts were made to contact Moore or time given to explore options other than storming her apartment after a little more than two hours.
”This is the life and safety of citizens in this community,” he said. “I am not asking you to hold these officers to a standard of perfection. I believe the evidence establishes that -- I believe there is certainly evidence that belies the claim that there was a fear that this building was going to burn up if they did not act.”
Gallegos also compares the Moore case to a Fortuna standoff that lasted 32 hours, saying Fortuna Police Chief Kris Kitna delayed entry, evacuated the surrounding area and obtained a Ramey warrant before entering the house where a hostage had been held by Michael Allman.
”They use gas. They break windows. They use shields. They use a PA system. I can't recall whether Chief Kitna indicated whether he tried to use the throw phone or not. It was a process that lasted 32 hours,” Gallegos said.
”There is something for us to consider, to look at to see what reasonable people do, what a standard might be. It is a double-edge sword though, because what else do we know? We know that Chief Kitna with the Eureka Police Department and the Sheriff's Department and -- they were there for 32 hours or roughly 32 hours, and what happened? Mr. Allman ended up dead,” he said.
The transcripts show jurors handed up the involuntary manslaughter indictment on Dec. 3.
Kimberly Wear can be reached at 441-0507 or kwear@times-standard.com.
Ramey warrant
A Ramey warrant is issued before a suspect is charged with a crime, sometimes with the intent to get more evidence on a suspected crime. It is a warrant issued by a judge, and does not require a case to be sent to a prosecutor first.
A Ramey warrant differs from an arrest warrant. An arrest warrant is issued by a judge after felony or misdemeanor charges have been filed. That means there must be enough evidence for a district attorney or city attorney to file a complaint, and the judge agrees there is probable cause.
BOX:
Unsealing the transcripts
The shooting death of Cheri Lyn Moore by Eureka police on April 14, 2006, rocked the community.
From the beginning, the Times-Standard believed that the case held enormous importance to the public. The newspaper exclusively videotaped the coroner's inquest that looked into her death in an effort to air as much information as possible.
When Humboldt County District Attorney Paul Gallegos announced he'd be taking the case to the grand jury, we petitioned Gallegos to ask the judge to open the proceedings to the public. He argued for that in court, but was turned down by jurors, who needed to approve an open session along with a judge.
When former Police Chief David Douglas and Lt. Anthony Zanotti were indicted by the grand jury, the Times-Standard immediately moved to have the transcripts of the proceedings released, a process that included several hurdles. In the beginning, court officials refused to acknowledge the existence of the case or that an open hearing had been held until the paper directly petitioned Judge John Feeney.
The Times-Standard's legal efforts were led by Roger Myers and his associates at the Holme Roberts & Owen law firm in San Francisco. Myers, a former reporter and editor, is one of California's leading First Amendment lawyers, and is general outside counsel for the California First Amendment Coalition.
The paper was blocked from receiving the records by Douglas and Zanotti's defense team. After repeated motions, the defense largely conceded to our position, and Feeney released the transcripts in their entirety.
'Right to know': Not just words
'Right to know': Not just words'Right to know': Not just words
Times-Standard
Article Launched: 02/21/2008 01:32:01 AM PST
The Times-Standard is gratified that Superior Court Judge John Feeney on Tuesday upheld the First Amendment and its counterpart in the California Constitution that say court records are presumed to be open to the public unless they are expressly ordered sealed under strictly defined legal tests.
After a legal back-and-forth dating back to last year, when a criminal grand jury handed up indictments of former Eureka Police Chief David Douglas and Lt. Anthony Zanotti in the Cheri Lyn Moore shooting case, Judge Feeney found for the Times-Standard and released the transcripts of the testimony and deliberations. Still to be released, pending review by defense counsel, are a video of the hearing and exhibits that were presented.
The lawyers for Douglas and Zanotti were within their rights -- and indeed probably were obligated to their clients -- to argue that release of the transcripts might taint the jury pool, should the case go to trial. The Times-Standard argued, and the judge agreed, that the defense had not offered any basis for concluding that sealing or redacting testimony and arguments would threaten chances for a fair trial.
Making a stand for freedom of information can sometimes be costly, but it's a duty that the American press has been proud to exercise for more than 200 years, and we hope it will always do so.
It's fitting that this decision in Humboldt County comes just before Sunshine Week, March 16-22, a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include not only print, broadcast and online news media, but also civic groups, libraries, non-profits, schools and others interested in the public's right to know.
Open government is important to liberals, conservatives and everyone in between, for without the free flow of information, the democratic system cannot work.
In Humboldt County this week, it worked.
Times-Standard
Article Launched: 02/21/2008 01:32:01 AM PST
The Times-Standard is gratified that Superior Court Judge John Feeney on Tuesday upheld the First Amendment and its counterpart in the California Constitution that say court records are presumed to be open to the public unless they are expressly ordered sealed under strictly defined legal tests.
After a legal back-and-forth dating back to last year, when a criminal grand jury handed up indictments of former Eureka Police Chief David Douglas and Lt. Anthony Zanotti in the Cheri Lyn Moore shooting case, Judge Feeney found for the Times-Standard and released the transcripts of the testimony and deliberations. Still to be released, pending review by defense counsel, are a video of the hearing and exhibits that were presented.
The lawyers for Douglas and Zanotti were within their rights -- and indeed probably were obligated to their clients -- to argue that release of the transcripts might taint the jury pool, should the case go to trial. The Times-Standard argued, and the judge agreed, that the defense had not offered any basis for concluding that sealing or redacting testimony and arguments would threaten chances for a fair trial.
Making a stand for freedom of information can sometimes be costly, but it's a duty that the American press has been proud to exercise for more than 200 years, and we hope it will always do so.
It's fitting that this decision in Humboldt County comes just before Sunshine Week, March 16-22, a national initiative to open a dialogue about the importance of open government and freedom of information. Participants include not only print, broadcast and online news media, but also civic groups, libraries, non-profits, schools and others interested in the public's right to know.
Open government is important to liberals, conservatives and everyone in between, for without the free flow of information, the democratic system cannot work.
In Humboldt County this week, it worked.
2.02.2008
TS - Gallegos offered immunity for shooters' testimony in Moore case
Gallegos offered immunity for shooters' testimony in Moore case
District Attorney Paul Gallegos gave SWAT team members and negotiators “transactional immunity” in order to illicit their testimony in the grand jury proceedings that ultimately lead to the indictment of their commanding officers, sources said this week.
Gallegos officially announced in December that a criminal grand jury had handed up indictments of involuntary manslaughter charges against former Eureka police chief David Douglas and Lt. Tony Zanotti for their decision making roles in the 2006 officer-involved shooting death of Cheri Lyn Moore.
Gallegos did not immediately return calls seeking comment Friday.
A letter addressed to “all police chiefs and sheriffs” from Douglas' defense attorney Bruce Praet, of the Santa Ana firm Ferguson, Praet and Sherman, says Gallegos gave SWAT team members and negotiators “transactional immunity,” the highest form of immunity in state, in order to focus strictly on Douglas and Zanotti.
Current Eureka Police Chief Garr Nielsen confirmed Praet's comments.
Transactional immunity is defined as immunity that protects a witness from prosecution for the offense involved.
”To illicit their testimony, that's what it took,” Nielsen said.
Praet said it was peculiar that Gallegos granted the immunity because if a prosecutor believes a shooting is criminal in nature, he would want to go after everyone involved, including the shooters.
”It's an interesting tactic on Gallegos' part to pit them against their lieutenant and former chief,” Praet said.
University of California Hastings College of Law professor David Levine said he didn't think it was that peculiar, and that prosecutors often use immunity to “use the smaller people to work up to the bigger ones.”
”That's how you crack a big case,” Levine said. “You work from the bottom up.”
But, that this case is being decided in criminal court is extraordinary, Levine said, as opposed to the more customary administrative and civil arenas.
Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, was shot April 14, 2006 by Eureka police officers in her apartment at Fifth and G streets after a two-hour standoff in which she brandished a flare gun, threw items from her second-story window and threatened to burn down the building.
Police have said they believed Moore had put down the flare gun when the decision was made to storm her apartment. When officers came face to face with Moore, who they say had the flare gun pointed at them, they shot her multiple times.
Praet's scathing letter states the defense team is confident both Zanotti and Douglas will be cleared of all charges, and urges police chiefs and sheriffs not to look at the case as a precedent setter.
”Quite frankly,” the letter states, “we are cautiously optimistic that this is little more than a rogue District Attorney Paul Gallegos who is attempting to advance his own political agenda as there is simply zero evidence to support these charges.”
The letter goes on to state that Gallegos “seems to be pursuing some sort of nonexistent theory of 'vicarious' criminal liability.”
Praet said it was troubling that Zanotti and Douglas were not among the nearly 50 witnesses called to testify during the criminal grand jury proceedings.
”One would think that if one's desire was to present a jury with a full picture of what had occurred, they would want to give the people who are the subject of the indictment the opportunity to present their side of the case,” Praet said. “Obviously, that was not done.”
Levine said it is possible that Gallegos knew Zanotti and Douglas were the targets of the grand jury proceedings from the start, and he didn't call them to testify figuring they would assert their Fifth Amendment rights.
Because Zanotti and Douglas also testified under oath at a coroner's inquest in 2006, Levine said Gallegos could have called Humboldt County Coroner Frank Jager to answer questions about Zanotti and Douglas' testimony at the inquest. A witness list obtained by the Times-Standard did not include Jager among the 47 people called to testify during the proceedings.
Nielsen said he knew early on in the proceedings that the incident's leadership was being targeted, but said he assumed that only meant Douglas.
Careful to say that he believes the indictments are erroneous, and Douglas and Zanotti will be cleared of any wrong doing, Nielsen said he didn't have a problem with leadership being the focus.
”As long as the officers who were involved are acting within policy and at the direction of their commanders, I think appropriately the responsibility ultimately needs to rest with the decision maker,” Nielsen said. “That's as it should be.”
As for Praet's reference to Gallegos as a rogue district attorney with a political agenda, Nielsen said he doesn't think that's the case.
”We're certainly not always going to agree. I don't agree with this ... and I'm sure he doesn't agree with everything I do and they way I run my department. But, I wouldn't characterize him in those terms,” Nielsen said. “The district attorney is an elected official and, as an elected official, he has to manage his agency as he sees fit.”
Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com
Sidebar: Transactional Immunity: Immunity from criminal prosecution granted to a witness for an offense related to his or her compelled testimony. It is the highest level of immunity that can be granted to a witness.
It differs from another type of protection afforded to witnesses, known as “use immunity.”
Use Immunity: Immunity granted to a witness in a criminal case that prevents the use of the witness' compelled testimony against that witness in a criminal prosecution. Source: Lawyers.com
***
Too bad Garr Nielsen fails to grok the situation.
To contribute to the City of Eureka's defense fund for David Douglas:
Send checks made out to the City of Eureka,
with David Douglas written in the “for” line,
to City Hall, 531 K St., Eureka, CA 95502.
Councilman Larry Glass said the checks would only be cashed if needed.
District Attorney Paul Gallegos gave SWAT team members and negotiators “transactional immunity” in order to illicit their testimony in the grand jury proceedings that ultimately lead to the indictment of their commanding officers, sources said this week.
Gallegos officially announced in December that a criminal grand jury had handed up indictments of involuntary manslaughter charges against former Eureka police chief David Douglas and Lt. Tony Zanotti for their decision making roles in the 2006 officer-involved shooting death of Cheri Lyn Moore.
Gallegos did not immediately return calls seeking comment Friday.
A letter addressed to “all police chiefs and sheriffs” from Douglas' defense attorney Bruce Praet, of the Santa Ana firm Ferguson, Praet and Sherman, says Gallegos gave SWAT team members and negotiators “transactional immunity,” the highest form of immunity in state, in order to focus strictly on Douglas and Zanotti.
Current Eureka Police Chief Garr Nielsen confirmed Praet's comments.
Transactional immunity is defined as immunity that protects a witness from prosecution for the offense involved.
”To illicit their testimony, that's what it took,” Nielsen said.
Praet said it was peculiar that Gallegos granted the immunity because if a prosecutor believes a shooting is criminal in nature, he would want to go after everyone involved, including the shooters.
”It's an interesting tactic on Gallegos' part to pit them against their lieutenant and former chief,” Praet said.
University of California Hastings College of Law professor David Levine said he didn't think it was that peculiar, and that prosecutors often use immunity to “use the smaller people to work up to the bigger ones.”
”That's how you crack a big case,” Levine said. “You work from the bottom up.”
But, that this case is being decided in criminal court is extraordinary, Levine said, as opposed to the more customary administrative and civil arenas.
Moore, who had a history of mental illness and was reportedly distraught over the anniversary of her son's death, was shot April 14, 2006 by Eureka police officers in her apartment at Fifth and G streets after a two-hour standoff in which she brandished a flare gun, threw items from her second-story window and threatened to burn down the building.
Police have said they believed Moore had put down the flare gun when the decision was made to storm her apartment. When officers came face to face with Moore, who they say had the flare gun pointed at them, they shot her multiple times.
Praet's scathing letter states the defense team is confident both Zanotti and Douglas will be cleared of all charges, and urges police chiefs and sheriffs not to look at the case as a precedent setter.
”Quite frankly,” the letter states, “we are cautiously optimistic that this is little more than a rogue District Attorney Paul Gallegos who is attempting to advance his own political agenda as there is simply zero evidence to support these charges.”
The letter goes on to state that Gallegos “seems to be pursuing some sort of nonexistent theory of 'vicarious' criminal liability.”
Praet said it was troubling that Zanotti and Douglas were not among the nearly 50 witnesses called to testify during the criminal grand jury proceedings.
”One would think that if one's desire was to present a jury with a full picture of what had occurred, they would want to give the people who are the subject of the indictment the opportunity to present their side of the case,” Praet said. “Obviously, that was not done.”
Levine said it is possible that Gallegos knew Zanotti and Douglas were the targets of the grand jury proceedings from the start, and he didn't call them to testify figuring they would assert their Fifth Amendment rights.
Because Zanotti and Douglas also testified under oath at a coroner's inquest in 2006, Levine said Gallegos could have called Humboldt County Coroner Frank Jager to answer questions about Zanotti and Douglas' testimony at the inquest. A witness list obtained by the Times-Standard did not include Jager among the 47 people called to testify during the proceedings.
Nielsen said he knew early on in the proceedings that the incident's leadership was being targeted, but said he assumed that only meant Douglas.
Careful to say that he believes the indictments are erroneous, and Douglas and Zanotti will be cleared of any wrong doing, Nielsen said he didn't have a problem with leadership being the focus.
”As long as the officers who were involved are acting within policy and at the direction of their commanders, I think appropriately the responsibility ultimately needs to rest with the decision maker,” Nielsen said. “That's as it should be.”
As for Praet's reference to Gallegos as a rogue district attorney with a political agenda, Nielsen said he doesn't think that's the case.
”We're certainly not always going to agree. I don't agree with this ... and I'm sure he doesn't agree with everything I do and they way I run my department. But, I wouldn't characterize him in those terms,” Nielsen said. “The district attorney is an elected official and, as an elected official, he has to manage his agency as he sees fit.”
Thadeus Greenson can be reached at 441-0509 or tgreenson@times-standard.com
Sidebar: Transactional Immunity: Immunity from criminal prosecution granted to a witness for an offense related to his or her compelled testimony. It is the highest level of immunity that can be granted to a witness.
It differs from another type of protection afforded to witnesses, known as “use immunity.”
Use Immunity: Immunity granted to a witness in a criminal case that prevents the use of the witness' compelled testimony against that witness in a criminal prosecution. Source: Lawyers.com
***
Too bad Garr Nielsen fails to grok the situation.
To contribute to the City of Eureka's defense fund for David Douglas:
Send checks made out to the City of Eureka,
with David Douglas written in the “for” line,
to City Hall, 531 K St., Eureka, CA 95502.
Councilman Larry Glass said the checks would only be cashed if needed.
1.25.2008
ER - lte - Flare gun projectile could cause agonizing death
Flare gun projectile could cause agonizing death
Published: Jan 24 2008, 4:06 PM
Dear Editor,
The Cheri Lyn Moore case is a sad one, indeed. The fact is that with any antisocial behavior or confrontation, be it standoff, protest or riot, when you put yourself on “front street,” you’re going to get hit.
A recent article stated that a flare gun projectile (as fired by Ms. Moore) travels very slowly, is easily extinguished and cannot penetrate body armor. Wrong, wrong and wrong again. If any armchair Coulda, Woulda, Shoulda will get up out of his or her chair and willingly take a direct hit from a flare gun, then, and only then, will I consider their opinion to have any merit.
The phosphorous flare, upon penetrating the body, will cook you from the inside out. You surely will dance before you die. I’d rather be shot by a bullet and die than cook from the inside out for up to 20 minutes from a flare. A flare stuck between the body and body armor of an officer could easily result in major injury or agonizing death.
There were choices made that set in motion a tragedy. Do you think there will be a time for healing? Closure — and just let go? You decide.
Benjamin Payne
Fortuna
Published: Jan 24 2008, 4:06 PM
Dear Editor,
The Cheri Lyn Moore case is a sad one, indeed. The fact is that with any antisocial behavior or confrontation, be it standoff, protest or riot, when you put yourself on “front street,” you’re going to get hit.
A recent article stated that a flare gun projectile (as fired by Ms. Moore) travels very slowly, is easily extinguished and cannot penetrate body armor. Wrong, wrong and wrong again. If any armchair Coulda, Woulda, Shoulda will get up out of his or her chair and willingly take a direct hit from a flare gun, then, and only then, will I consider their opinion to have any merit.
The phosphorous flare, upon penetrating the body, will cook you from the inside out. You surely will dance before you die. I’d rather be shot by a bullet and die than cook from the inside out for up to 20 minutes from a flare. A flare stuck between the body and body armor of an officer could easily result in major injury or agonizing death.
There were choices made that set in motion a tragedy. Do you think there will be a time for healing? Closure — and just let go? You decide.
Benjamin Payne
Fortuna
1.09.2008
TS - 01/09/2008 Moore jury needs answers
Poor Ken, just can't give it up...
Moore jury needs answers
Times-Standard
Article Launched: 01/09/2008 01:15:31 AM PST
The jury, and the public, need answers in the Cheri Moore killing:
* If the reason for storming her apartment was the threat of a fire from a flare gun, why was a command center established in harm's way below her apartment rather than across the street?
* Why were residents on Ms. Moore's floor not evacuated, and why were some refused exit?
* Why was the fire chief not consulted to deploy his crew?
* Why was a ballistics expert not consulted to determine that a flare projectile travels very slowly, is easily extinguished, and cannot penetrate body armor or face masks?
* Why were available ballistic shields not employed?
* Why did the officer with non-lethal weaponry not deploy his distracting weapon, and why was he third in line to enter?
* Why did SWAT not bring a fire extinguisher?
* Why was tear gas not used (EPD excuse that the window was open is not credible)?
* Why did the SWAT team storm the apartment during a “time-out” in the negotiations?
* Why did Rocky Harpham shoot from panic rather than tackle her?
* Why did the commanding officers not evacuate, secure the area, deploy fire crew, and utilize Ms. Moore's friends or relatives to wait her out and negotiate?
* What was the rush, given that no uncontrollable emergency existed?
* Why aren't the shooters also indicted?
It appears that EPD negligently provoked her, endangered her neighbors, and killed her with a panicked SWAT team.
Ken Miller, MD
McKinleyville
Moore jury needs answers
Times-Standard
Article Launched: 01/09/2008 01:15:31 AM PST
The jury, and the public, need answers in the Cheri Moore killing:
* If the reason for storming her apartment was the threat of a fire from a flare gun, why was a command center established in harm's way below her apartment rather than across the street?
* Why were residents on Ms. Moore's floor not evacuated, and why were some refused exit?
* Why was the fire chief not consulted to deploy his crew?
* Why was a ballistics expert not consulted to determine that a flare projectile travels very slowly, is easily extinguished, and cannot penetrate body armor or face masks?
* Why were available ballistic shields not employed?
* Why did the officer with non-lethal weaponry not deploy his distracting weapon, and why was he third in line to enter?
* Why did SWAT not bring a fire extinguisher?
* Why was tear gas not used (EPD excuse that the window was open is not credible)?
* Why did the SWAT team storm the apartment during a “time-out” in the negotiations?
* Why did Rocky Harpham shoot from panic rather than tackle her?
* Why did the commanding officers not evacuate, secure the area, deploy fire crew, and utilize Ms. Moore's friends or relatives to wait her out and negotiate?
* What was the rush, given that no uncontrollable emergency existed?
* Why aren't the shooters also indicted?
It appears that EPD negligently provoked her, endangered her neighbors, and killed her with a panicked SWAT team.
Ken Miller, MD
McKinleyville