Third Trial in Police Bruality Case Set To Begin Today with Defense Possibly Lacking Resources For Expert Witnesses –
Ernesto Galvan was beaten into a class-3 coma by officers during an incident that occurred on June 14, 2005 at 3:20 am in West Sacramento. Photographs shown at trial show Ernesto Galvan lying face down in a pool of blood.
The trial is set to begin again, but this time the defense may be lacking a major tool in its arsenal. It may not be able to afford to bring in the expert witnesses it did last time – both to provide medical testimony and testimony on the use of force.
Demonstrating the pitfalls of the legal system, there have been two hung juries in this case. The brothers have nearly depleted whatever resources they had and whatever help they once had from outside sources. Now, they may be completely reliant on what defense can be provided for the indigent, and may be lacking the resources to pay for experts to come testify.
On Monday, Judge Timothy Fall reiterated denial of defense requests to make public funds available for expert witnesses. With limited funds available to defend in this third trial, at best the brothers may only be able to have the transcripts of previous testimony read to the jury and into the record. It may put them at a distinct disadvantage in a system which technically does not allow double jeopardy, but has effectively allowed the prosecution in this case to exhaust the resources to provide a good defense.
This is a case that is troubling, and at the same time baffling, in that the DA’s Office would continue to pursue prosecution on relatively minor charges in a case where the brothers received by far the worst of any confrontation.
According to the prosecution’s version of events, Officer Donald Schlie of the West Sacramento Police Department was on patrol, driving solo. He stopped to check out a vehicle and two men along the roadway, and began questioning them.
According to prosecution testimony in the last trial, Officer Schlie approached the brothers and noticed that one was 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, according to the prosecution, Officer Justin Farrington arrived as a backup officer, 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. The prosecution’s use-of-force witness, Don Stuart Cameron, later described how officers are trained only to aim their strikes at the suspect’s head if deadly force is warranted. A third officer arrived, and subdued Fermin (to the ground), inadvertently causing asphalt scrape injuries and a broken tooth.
The expert testimony seems crucial to this case, because at issue are two points: whether the blows to the head delivered by police officers were direct or glancing, and whether appropriate use of force was applied. A further crucial point is whether Officer Schlie’s original attempt to detain Ernesto had a lawful basis.
In the February trial, Dr. Steven Gabaeff testified for the defense and 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 at 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, thereby inflicting mild injuries on the officer. 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).”
This second mistrial ended in an 11-1 vote to convict on five of the six counts, with the other count ending at 10-2.
Prosecutor Carolyn Palumbo told the jury in the second trial 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 stated. She reminded the jury not to allow bias, sympathy, and so forth, 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 the 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.
According to the prosecution, reasonable force was used – the initial force used to detain Ernesto was only grabbing his wrist, not excessive, and the defendant cannot use force to resist a reasonable detention. If Ernesto had not resisted and had not committed battery, this 4-minute battle and all this injury would not have happened. Later injuries do not erase the initial crimes that occurred.
The defense argued that 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?” Defense Attorney Alan 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 Deputy District Attorney described the location as a “high crime area,” the officers saw no crimes, no crimes were reported and 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 had claimed that an expert witness would 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 that the certainty that the blows were deflected was 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 to Ernesto were a result of direct or indirect hits was indeterminable, defense expert witness Dr. Gabaeff showed that is it reasonable to conclude, given the force of the hits, 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 upward from lower areas in the body to the head, and arrive with such force.
Moreover, if police policy is that the officers 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 Vanguard, in the last trial, was able to speak to the lone juror who held out.
Jeff Austin from Davis expressed frustration and doubt, however, because the fellow jurors were unwilling to discuss the case, and seemed more interested in getting on with their lives. 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, or lack thereof, 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.
The trial is set to begin today, and this time the brothers may not have the benefit of expert medical or use-of-force testimony. They continue to face relatively minor charges that likely will not even result in prison time. Is this case not simply a waste of taxpayer resources at this point? That will be in the hands of a jury soon enough to decide.
—David M. Greenwald reporting
Lock em up and throw away the key .
“Now, they are completely reliant on the indigent defense system,”
Excuse my ignorance, but what does that mean? Is it a figure of speech, or does it describe an available “system” in the traditional use of the word?
indigent defense refers to public financing of defense attorneys for clients who are unable to pay. It could take the form of a public defender or contracted council. They often lack the resources to be able to afford expert witnesses which as you should know can be highly important to a jury making a determination, especially a case like this which is largely a judgment call.
dmg: “This second mistrial ended in an 11-1 vote to convict on five of the six counts, with the other count ending at 10-2.”
1) I believe you told us that the brothers are/will be suing the police officers in question and city of West Sacto.
2) The trial is getting closer/is not far off from a conviction (now shy of only one vote to convict).
I think these two things explain why the DA is continuing to pursue this case.
dmg: “On Monday, Judge Timothy Fall reiterated denial of defense requests to make public funds available for expert witnesses. With limited funds available to defend in this third trial, at best the brothers may only be able to have the transcripts of previous testimony read to the jury and into the record.”
Thus the expert testimony will be available for this trial, and I’m sure the defense will have it read into the record and use it to cross examine the prosection’s expert witnesses.
dmg: “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.”
If Ernesto is just being arrested for “drunk and disorderly”, why the violent reaction to the point of striking the officer? Ernesto escalated the incident to something far more serious…
dmg: “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.”
Are you saying that hitting an officer is lawful if the officer is making an unlawful arrest – such as the person is not drunk but being arrested for being drunk and disorderly? That doesn’t make sense to me – that you can hit an officer if the officer is mistaken that you are drunk. I could see where you could pull away from the officer, but not physically assault the officer.
Now if the officer was using excessive force by beating the victim for no reason – the person was minding his own business, was where he had a right to be, was not publicly intoxicated – but the officer for no reason started beating on the victim – the victim would have a right to fight back to keep from being killed/seriously injured. But why would an officer start beating on a person walking down the street minding his own business? That doesn’t make logical sense…
If the defendants in this case have filed a lawsuit arising from this incident now being prosecuted criminally, it is prudent that the DA would persist in the criminal prosecution. Respondent Musser (sorry, don’t know your gender) correctly pointed out the near guilty verdict as a motivator.
The lawsuit is probably the more compelling reason. Should there be a criminal finding that the arrest was lawful (i.e., conviction), the defendants resistance is not legally justified and goes a long ways in a civil suit towards putting the arresting officers in a more favorable light with their arrest actions. In fact, I’d predict the suit would be dropped or dismissed.
From reading this summary, much weight has been placed on the force and location of the blows received by the defendant. The defense is making the argument that blows supposedly directed towards non-lethal parts of the body were really intended towards the defendant’s head.
From the perspective of one who was not there–but who has had innumerable and similar street fights in the past such as depicted here– the distinction in this case between “direct” “deflected” head blows is of little or no value showing officer intent to cause bodily injury.
In a actual street fight, blows given and received by either party more often than not do not land where they were intended. You’d be surprised how many times blows miss the target completely! It is very plausible for an assailant to aim for a knee or an elbow and hit a head or neck.
Picture this, two or more grappling bodies under great stress, twisting and turning, hitting and being hit. Let’s just say no participant really knows what they are doing other than trying to survive.
See Jury Instructions, within the category Crimes Against Government and in the No. 2600 series, specifically CALCRIM Nos. 2652, 2656, 2670, 2671 and 2672, especially No. 2672 “Lawful Performance: Resisting Unlawful Arrest with Force.”
Website http://www.courtinfo.ca.gov/jury/criminaljuryinstructions
Elaine:
Getting a conviction in this case isn’t going to do a whole lot several years after the fact, particularly given the fact that neither brother will do prison time. Think about the costs here.
“Thus the expert testimony will be available for this trial, and I’m sure the defense will have it read into the record and use it to cross examine the prosection’s expert witnesses. “
No, the Judge said he would consider allowing that with a motion. Reading a transcript is a poor substitute for a live expert with charts, pictures, and graphics. We also were not particularly impressed with the use of force expert, but the doctor was outstanding.
“If Ernesto is just being arrested for “drunk and disorderly”, why the violent reaction to the point of striking the officer? Ernesto escalated the incident to something far more serious… “
Understand that’s the DA’s version of events you are responding to.
“Are you saying that hitting an officer is lawful if the officer is making an unlawful arrest – such as the person is not drunk but being arrested for being drunk and disorderly? That doesn’t make sense to me – that you can hit an officer if the officer is mistaken that you are drunk. I could see where you could pull away from the officer, but not physically assault the officer. “
Highbeam referenced the jury instructions, you can look it up for yourself.
I think a lot of you are missing the big picture. The city of WS needs a conviction so when they get civilly sued, they can say the brothers were convicted.
If the DA can’t get a conviction the civil suit is almost a sure win. However, by the DA continuing to go after these guys, they are holding off the liability to W. Sac police and the city.
If the jury were to acquit the brothers, meaning all jurors voted Not Guilty, then this would put a stop to this waste of tax payer money. An acquittal would prevent the DA from filing again. If the count was 11 not guilty and 1 guilty, the DA would still re-file. As long as they are being charged, they cannot go forward with a civil suit.
This is simply a way for the DA to protect the city of West Sac from more liability, again at tax payer expense. Of course, Mr DA Reisig will get a few “blue chips” from the city leadership to cash in at a later date.
I personally know that the prosecuting Dep DA Palumbo did not want to prosecute this case and she knows why this continued waste of time and money is really being invested into this case and Justice is not it. But she reports to DA Reisig and everyone knows what happens if you go against his Majesty. So you will not hear anyone speaking out publicly about what the real agenda is here.
[quote]If the jury were to acquit the brothers, meaning all jurors voted Not Guilty,[/quote]roger… Elaine can correct me, as she is an attorney… in order to acquit… it takes far less than all jurors… depending on the nature of the trial, it takes ALL TO CONVICT… hung juries are the ‘tweeners”… wrong, Roger…
hpierce: Check your facts and educate yourself before you post and then ask others to correct you. In criminal cases the jury can have three outcomes:
Guilty: All jurors vote guilty = conviction
Not Guilty: All jurors vote not guilty = acquittal
Hung Jury: Some vote guilty and some vote not guilty = Mistrial
[quote]According to prosecution testimony in the last trial, Officer Schlie approached the brothers and noticed that one was 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.[/quote]
This is really all you need for a lawful detention. You have two individuals in a high crime area in the middle of the night. One is sweating and behaving oddly. This is an indicator of someone who is under the influence of a controlled substance. The individual fails to comply with the officers orders to keep his hands out of his pockets. The officer, for his safety, grabs the subjects arm to remove it from the pocket and the subject strikes the officer multiple times.
WOW, POLICE BRUTALITY. The argument of unreasonable force to detain a subject falls severely short. The initial attempt to detain is lawful.
As for the argument for intentional strikes to the head. Have you ever tried to hit a baseball and missed. You are swinging at a moving target. Aiming for an arm on a moving individual is the same thing.
I think DMG should contact his local police department and ask to fight the Red Man (person in a protective suit) with a baton to see how he handles a full on fight before coming to the conclusion the officers tried to hit this man in the head. Just a thought to provide a little perspective.
dmg: “Highbeam referenced the jury instructions, you can look it up for yourself.”
I did look it up, and it does NOT support your contention that a defendant is permitted to strike an officer who is making an unlawful arrest. Please show me where it states that anywhere in the jury instructions…
Roger Rabbit: “Guilty: All jurors vote guilty = conviction
Not Guilty: All jurors vote not guilty = acquittal
Hung Jury: Some vote guilty and some vote not guilty = Mistrial”
I’m not sure where you are getting your misinformation from – please cite source…
From Black’s Law Dictionary:
“Not guilty – …The form of the verdict in criminal cases, where the jury acquits the defendant…”
“Acquittal – …finding of not guilty.”
From Wikipedia:
“As of 1999 over thirty states had laws allowing less than unanimity in civil cases, but Oregon and Louisiana are the only states which have laws allowing less than unanimous jury verdicts for criminal cases.”
Mr. Obvious: “You have two individuals in a high crime area in the middle of the night. One is sweating and behaving oddly. This is an indicator of someone who is under the influence of a controlled substance. The individual fails to comply with the officers orders to keep his hands out of his pockets. The officer, for his safety, grabs the subjects arm to remove it from the pocket and the subject strikes the officer multiple times….The argument of unreasonable force to detain a subject falls severely short. The initial attempt to detain is lawful.”
I tend to agree with your assessment in this case…
[quote]Mr Obvious:I tend to agree with your assessment in this case.[/quote]
And I will continue to provide the obvious.
“”One is sweating and behaving oddly. This is an indicator of someone who is under the influence of a controlled substance. The individual fails to comply with the officers orders to keep his hands out of his pockets. The officer, for his safety, grabs the subjects arm to remove it from the pocket and the subject strikes the officer multiple times….The argument of unreasonable force to detain a subject falls severely short. The initial attempt to detain is lawful.”
I tend to agree with your assessment in this case… “”
Only one thing is Obvious, there are some who tend to believe everything a Police Officer says. The sad fact is the police officers in Yolo County do lie to “support their findings”. From earlier accounts of this case, the police thought the defendant was under the influence but tests in the hospital proved that assumption to be wrong. Therefore the allegation about sweating was probably also false. So how much of the Police account was actually true?
I didn’t read anything here that presented any defense to this being a lawful detention.
I would like to know some background on the brothers.
ERM “I think these two things explain why the DA is continuing to pursue this case. “
How many times do you think is justified to retry a case. This case seems flimsy at best and to spend an excessive amount of tax payer dollars to continue retrying cases until you get the verdict you’re hoping for is a major waste of time and money.
Elaine:
“I did look it up, and it does NOT support your contention that a defendant is permitted to strike an officer who is making an unlawful arrest. Please show me where it states that anywhere in the jury instructions…”
I don’t think you actually looked at 2672 first line:
“[u]The defendant is not guilty of the crime of (battery against a peace officer[/u][,]/ [or] assault against a peace officer[,]/ [or] assault with (force likely to produce great bodily injury/a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon) against a peace officer[,]/ [or] ) if the officer was not lawfully performing (his/her) duties because (he/she) was unlawfully arresting someone.”
It continues:
“However, even if the arrest was unlawful, as long as the officer used only reasonable force to accomplish the arrest, the defendant may be guilty of the lesser crime of (battery[,]/ [or] assault[,]/ [or] assault with (force likely to produce great bodily injury/a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon)).”
But, “On the other hand, if the officer used unreasonable or excessive
force, and the defendant used only reasonable force in (self-defense/ [or] defense of another), then the defendant is not guilty of the lesser crime[s] of (battery[,]/ [or] assault[,]/ [or] assault with (force likely to produce great bodily injury/a deadly weapon/a firearm/a semiautomatic firearm/a machine gun/an assault weapon)).”
From that it is pretty clear that the defendant is entitle to use reasonable force and self defense in response to an officer using excessive force in carrying out an unlawful arrest.
The operative word here is the defendant can use only “REASONABLE force”. I don’t think striking an officer who was trying to keep the defendant’s hands out of his pockets would be considered “reasonable force”. Almost all the jurors didn’t think so either…
Question, did the cops taser once, see the results or three cops tasered all at the same time…Usually, it is someone with a large amount of drugs in their system who resists after being hit, but three shots?
It would be interesting to know the science behind it, what if anything they had in their system? (they were not doing anything wrong) what amounts would be needed to continue to resist after three shots?
As always, just wish their was a camera to see the defendent- continueing to resist that the cops must fear their own lives. IF, they, IF, they did resist and continue to resist, then being taser shot three times would make sense.And deserved. the baton, though, not sure, again, too bad the cops dont cary cameras. oh, but their cars do, but that too, as I have heard, can be turned off or not facing where it needs to go.