For the second time, a Yolo County jury was unable to reach a verdict in the case of Ernesto and Fermin Galvan, brothers who were charged with resisting arrest and battery for an incident that occurred back in 2005.
The defendants have alleged excessive force by the police officer. At that time, they had been unable to come to trial because the younger brother had suffered debilitating head injuries.
Judge Tim Fall declared a mistrial after a juror announced they were hopelessly deadlocked on all six counts. One juror held out against conviction on all counts, the same thing that occurred in the original trial back in 2007.
As Ernesto Galvan sat in court, his entire head was scarred and cratered, he walks with a noticeable slump, and his speech is slurred. He has permanent brain and physical injuries.
The brothers have filed a federal lawsuit against the city of West Sacramento and the police officers.
Dr. Steven Gabaeff, who testified for the defense on Wednesday, described seven fractures in Ernesto’s skull including a 5/8-inch depression of the frontal plate. Dr. Gabaeff, an emergency medicine doctor by trade, described the injuries as consistent with high speed impacts.
Prosecutors had argued that the blows to Ernesto’s skull were the result of deflected blows, but Dr. Gabaeff said there was no way, given the force that was inflicted on Ernesto, that the blows were aimed anywhere other than his head.
Ernesto Galvan received the more serious charges of resisting arrest with violence and battery on a peace officer. The verdict hinged in part on whether or not the officers were lawfully performing their duties when Mr. Galvan struggled against the officer, inflicting mild injuries. The law permits individuals to defend themselves against unlawful arrest or excessive force.
According to the law:
“A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties).”
Similarly to the first trial, this one ended in an 11-1 vote to convict on five of the six counts with the other count ending at 10-2.
The Holdout
He expressed frustration and doubt, however, because the fellow jurors were unwilling to discuss the case, and they seemed more interested in getting on with their life. Shocking was a comment made by one of the jurors, indicating that the defendants were lucky they were not shot.
Mr. Austin had reasoned that the Galvans could have been behaving entirely in self-defense, but he would have been more apt to consider guilt if the other jurors had been willing to take the time to go through the evidence. Most of the other jurors were unwilling to discuss the reasonableness of the initial detention of Ernesto Galvan by Officer Donald Schlie, arguing only that Mr. Galvan resisted detention and arrest before the officers delivered the baton blows that did so much damage.
Resistance to an officer is legally acceptable, as self-defense, if the officer is not lawfully performing his or her duty, such as making an unlawful detention or arrest, or using excessive force. If the alleged excessive force did not occur until after resistance to a lawful arrest, then the excessive force does not make the arrest unlawful. But, although Mr. Galvan may have resisted arrest before the use of force that so injured him, the hinge pin becomes whether the detention was valid to begin with, based upon the officer’s suspicion of unlawful intoxication. Mr. Austin was not convinced that Officer Schlie had the right to detain Mr. Galvan in the first place.
Mr. Austin cited inconsistencies in officers’ accounts of the event, discrepancies in reports of wounds, conflicting opinions of expert witnesses, and poorly-taken reports (an interrogation of Fermin Galvan, while he was still in the hospital and perhaps sedated, performed by Officer Joe Villanueva through a hospital interpreter, failed to be conducted with the confirmation of a recording), and found that all added up to enough to raise reasonable doubt.
Mr. Austin thought that evidence as to the lack of controlled substances in the Galvans’ blood would have helped the other jurors to decide there was reasonable doubt, but that in itself should not be necessary, as the defendant is always presumed innocent. The high standard of proof, “beyond a reasonable doubt,” was enough to convince Mr. Austin that he could not find the defendants guilty beyond a reasonable doubt, and to the exclusion of a reasonable doubt.
Several of the jurors had simply assumed that Mr. Galvan was high, despite the fact that no evidence was provided to substantiate that point.
Closing Arguments – Prosecution
Officer Schlie, upon approaching the brothers, noticed that they were sweaty and behaving oddly. This included Ernesto repeatedly thrusting his hands into and out of his pockets. Officer Schlie did not know if he might have a weapon. Officer Schlie asked him to keep his hands out of his pockets, then tried to detain Ernesto by grabbing his wrist. As he tried to detain Ernesto, Ernesto turned and struck Schlie, and kept on punching. Schlie repeatedly tried to subdue Ernesto verbally, but Ernesto fought wildly and with unusual strength. Schlie tried his Taser, but that was also ineffective.
At this point the backup officer, Officer Farrington, arrived, but both were unable to restrain Ernesto. They used their batons multiple times. A few blows inadvertently struck Ernesto on the forehead, although they were intended for the extremities. A third officer arrived, and subdued Fermin (to the ground), inadvertently causing asphalt scrape injuries and a broken tooth.
Prosecutor Carolyn Palumbo told the jury that the injuries that the brothers suffered were the result of crimes against the police officers.
“Injury doesn’t make them less guilty,” Ms. Palumbo began. She reminded the jury not to allow bias, sympathy etc to persuade, and that their decision must be based upon the evidence.
Ms. Palumbo argued in closing that Ernesto Galvan struck Officer Schlie before the first tasering. She argued that public intoxication is a crime and they were apparently under the influence of a controlled substance. The second officer on the scene, Officer Farrington, corroborated the symptoms, by saying Ernesto had strength consistent with use of stimulants, so Schlie was allowed to detain even prior to a search for weapons, and had the right to grab Ernesto’s wrist and to use reasonable force.
In their rebuttal, the prosecutor argued that with $35 million at stake in a federal lawsuit, the Galvans have every reason to lie – this is about the money.
Closing Aruments – Defense
Officers used excessive force and then attempted to cover it up by filing charges.
“Don’t you think they had to come up with some justification for why he (Ernesto Galvan) ended up on the ground lying in a pool of blood?” Greenstein asked the jurors during his closing statement.
Although they were at the levee, in the dark, nearly 3:30am, it was not illegal to be there…they were under a streetlight, not hiding or fleeing, but walking towards Officer Schlie. Although the District Attorney described the location as a “high crime area,” the officers saw no crimes, no crimes were reported, no drugs or weapons were found in searches.
Mr. Greenstein further argued that there were inconsistencies in the officers’ accounts and where testimony does not agree, there is reasonable doubt.
He argued that Ernesto never used more than his hands as weapons against a force that was excessive and unreasonable.
During the opening statement, Ms. Palumbo claimed that an expert witness will testify that all of Ernesto’s head injuries were consistent with “glancing blows.” However, the testimony of prosecution witness Dr. Wong only suggested that he could not rule such out. Under cross-examination he even said, the chances of only glancing blows were not higher than “possible.” He also agreed that most doctors would say that the pushed in, depressed skull would be the result of direct impact.
In his closing remarks, Mr. Greenstein argued that, while Dr. Wong was honest in saying that an absolute conclusion about whether the blows that struck Ernesto were a result of direct or indirect hits was indeterminable, given the force of the hits per Dr. Gabeoff’s testimony, it is reasonable to conclude that Ernesto was directly struck in the face and head by batons from officers. He argued that there were no comparable injuries to the alleged target extremities, and it was unlikely that a blow could be deflected from lower areas in the body to the head and arrive at such force.
Moreover, if they were “not supposed to hit the head,” but did so accidentally via deflected blows, why did they keep on hitting? They should have stopped “aiming at the arms” if all blows were being deflected to the head.
The prosecutor has indicated that they will likely prosecute this case for a third time.
The Vanguard will have a more detailed analysis of the testimony in this case in the coming week.
—David M. Greenwald reporting
I would like to make a couple of clarifications to what was stated above.
1) The jurors did discuss the case and several said they were willing to stay as long as it took. My frustration was that several had already made up their minds as to the defendants being guilty and stated that nothing anyone else said would change their minds. When I tried to point out inconsistencies, medical evidence/testimony etc that raised doubt in my mind, they were unwilling to even consider the possibility that my points had merit or that were worth looking into further.
2) I was willing to consider a lesser misdemeanor charge against Ernesto but in order to do that the jury had to find him not guilty of the greater crime (felony) and the other jurors were not willing to do that.
3) One of the jurors was very angry at me for not agreeing with the group and for thus wasting 2 weeks of his life because this was ending without a guilty verdict. Several of the other jurors did said they respected my convictions and for standing ground even if they didn’t agree with me.
4) One of the jurors said the officers had every right to hit Ernesto directly in the head with their batons and that he is lucky that they didn’t shoot him because they certainly had that right.
5) If medical evidence was introduced showing that either or both brothers were under the influence of controlled substances, it may have have changed the votes of 1 or 2 other jurors but would not have been enough to make a unanimous guilty or not guilty verdict.
6) Several of the jurors agreed that some of the officers used unreasonable and excessive force but were unwilling to let that affect their guilty vote.
Ultimately this came down to whether I was convinced beyond a reasonable doubt of the defendants’s guilt. I was not and thus could not in good conscience render a guilty verdict.
I applaud Mr. Austin for his willingness to stand up for what he feels was the right thing to do. Having been on a couple of juries, I can say I have had similar experiences with jury members pre-judging, inserting some personal bias into their decision, and others refusing to objectively listen to the evidence.
Wait. Didn’t Officer Schlie’s middle fingers have a swastika and the double lightning bolts of the Nazi SS tattooed on it?
First, I would like to thank Jeff Austin for standing up for his convictions and for letting the rest of us know what took place in this case. Next, I would like to thank David Greenwald for starting this site and bringing forward these types of cases. It takes a strong person to stand up against the grain. It is easy to turn your head to things that might be uncomfortable. People need to pay attention to what is happening around them in Yolo County and not be afraid to speak up. Things will get better when good people start asking the hard questions. Thank you Jeff and David for paying attention.
Sadly this is not unusual….
“A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties).”
There seems to be a pattern of this unlawful behavior by some members of the West Sacramento police department. Several years ago I was on a jury in which the same issue came up. In that case three men were charged with resisting arrest and public intoxication. It became clear to all of us serving on the jury that both charges were spurious and that an unlawful arrest and beating of the men had taken place. The officers had to come up with a reason to have engaged and arrested the victims in the first place. Therefore they chose to charge the defendants with “public intoxication” and then “resisting arrest.” Yet when the case came to trial the DA could not prove that any of the men were intoxicated. No blood or sobriety tests were administered (even after the arrest) and the pictures taken at the scene by the West Sacramento police watch commander and other evidence (mentioned in the police report) were missing and never to be found even after being subpoenaed by both the DA and defense counsel. Testimony by the defendants and all citizen witnesses disputed the officer’s accounts.
It became clear to the jury that two West Sacramento police officers had instigated a needless and unnecessary altercation with law abiding citizens and unlawfully beat them and tasered them when those citizens questioned the actions of the officers. Once the beating and tasering had occurred the officers came up with a phony reason for their conduct that resulted in the arrest on “public intoxication” charges followed by “resisting arrest” charges. This was a concocted story, which no one on the jury believed.
It was really troubling to witness police officers telling lies on the stand and fabricating stories to justify their conduct. Worse they were very willing to have three innocent individuals convicted for crimes they had not committed. Fortunately for those three defendants who were victims of serious police misconduct the jury found them innocent on all counts.
It is clear to me that there is, in fact, a serious problem in this county. Does anyone ever question such unlawful behavior behind the officers in Yolo county? And why has this unjust treatment of citizens been allowed to occur? Why are people ignoring the possible motivations for all “their” abuse towards people in the community? I’ve heard of WSPD killing unborn children…and people living in such fear of the cops that they won’t even call them in times of need,for fear they will end up being the accused which actually defeats any idea or purpose justice is suppose to serve. Why is this case against the Galvan brothers so difficult to understand for some people when the physical evidence is clearly all over the guy? It is clear who caused more damage, it is clear whose life has been altered for the remainder of his life, it is clear who used excessive force and on on…these officers need to be held accountable for their multitude of sins…plain and simple.
Mistrial? You’ve got to be kidding! As a 30 year resident of yolo county, I’ve seen the West Sacramento Police Department get away with way to much! Theese guys make the L.A. Police Department look like cub scouts. Enough is Enough! The county needs to be held responsible. If the West Sac PD gets away again, we all better start carring around cameras so that justice will prevail.
Theese officers should be charged with attempted murder!