Opening statements began on Wednesday in the third iteration of the trial of Ernesto and Fermin Galvan, charged with resisting arrest and battery stemming from a West Sacramento incident in 2005. Both earlier trials – one in October 2007 and the other in February of 2010 – ended in hung juries.
Jury selection on this case began on Monday, but on Tuesday things got interesting as both sides, after reviewing the lengthy questionnaire, began the process voir dire.
In a criminal trial both the defense and prosecution get 20 “peremptory” challenges, in which they may excuse a potential juror without giving a specific reason. However, Ms. Sequeira objected that 10 of the prosecution’s challenges were against minorities, mostly Hispanics. Basically, she argued that DDA Palumbo systematically dismissed many of the potential Hispanic jurors.
Ms. Sequeira filed a Batson-Wheeler motion. According to two federal cases, a Batson-Wheeler error occurs when peremptory challenges to remove prospective jurors are based solely on group bias, with the presumption that jurors are biased merely due to the fact that they are members of an identifiable group distinguished by race, religion, ethnicity, or other similar grounds.
According to a Supreme Court decision in which the motion was filed by the defense, “the defendant must make out a prima facie case by showing that the totality of the relevant facts give rise to an inference of discriminatory purpose.” Moreover, “once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes.”
However, the trial court gets to make the determination as to whether the defendant has established such a case. In this case, Ms. Sequeira argued that any apparent biases these people exhibited were no worse than those of several prospective jurors who were white.
This motion was discussed only outside the presence of the prospective, and eventual, jurors. Judge Fall has denied each instance of this motion, finding no sufficient evidence of discrimination, but the grounds for the defense’s objections are recorded, preserving the issue for appeal.
In her opening statement, DDA Palumbo detailed the fight which broke out after West Sacramento Police Officer Donald Schlie, who has since been promoted to Detective in the same Department, attempted to detain Ernesto Galvan around 3:20 am on 6/14/05 along Riverbank Road.
In her description, Officer Schlie stopped to investigate the two brothers and their parked car. He engaged them in conversation, and believing that Ernesto was under the influence of a controlled substance, grabbed Mr. Galvan’s wrist when he appeared not to comply with the officer’s requests. Mr. Galvan struggled, and it escalated from there.
Within a couple of minutes, backup Officer Justin Farrington arrived, and both officers attempted to subdue Mr. Ernesto Galvan. Other officers arrived, and the suspect was still fighting.
Ms. Palumbo said that Mr. Galvan continued to resist arrest, even through three Taserings and multiple baton strikes. She said the officers were shocked, and feared for their lives.
DDA Palumbo said that the jury will hear from six prosecution witnesses, including police officers and an expert on police use of force. She wanted the jury to understand that the severity of the injuries to the Galvans did not exonerate resisting arrest and assaulting a police officer.
Defense Attorney Anthony Palik, representing Ernesto Galvan, argued that Officer Schlie will deny that he asked the brothers for identification, or whether they were intoxicated.
He said there will be inconsistencies in the officers’ testimonies. He said that the prosecution’s use of force expert will reveal that the officers did not comply with Peace Officer Standards and Training (POST), and because of that, the encounter escalated into the event that caused so much physical trauma to Ernesto Galvan.
Mr. Palik stressed that the prosecution’s own expert witness will describe that the police batons were intended to be used as defensive weapons.
Martha Sequeira, representing Fermin Galvan, described that the brothers were doing nothing illegal when Officer Schlie encountered them, and the end result had Ernesto in a stage-3 coma and Fermin lifeless on the ground. She said that, while the defense may or may not call witnesses, the jury’s duty will be to consider the defense’s cross-examination of prosecution witnesses just as importantly as the direct examination.
One of the key questions in this case will be the extent to which the Officers were conducting a lawful detention and whether the brothers were justified in resisting an unlawful arrest.
From some of the Judicial Council of California Criminal Jury Instructions related to Penal Code 69, the charge of resisting arrest/obstructing an executive officer in lawful performance of duty, we know that it can be lawful to resist detainment or arrest.
If the detainment or arrest is not lawful (and the People have the burden of proving lawfulness), or excessive force was used, resistance is permitted. The extreme force used against the Galvans, especially Ernesto, may have begun after Ernesto started resisting, and the claim by the prosecution that the police degree of force was a result of the defendants’ own actions may be difficult for the defense to counter.
But the People do have to prove that Officer Schlie was justified in his initial grabbing of Ernesto Galvan’s wrist.
Jury Instruction CALCRIM No. 2672 clarifies the issue of resisting unlawful arrest with force.
It begins “The defendant is not guilty of the crime of (battery against a peace officer[,]/ [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] other…such as resisting arrest
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)).”
Another key section in this instruction for our purposes is this one, “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 may be entitled to use reasonable force and self-defense in response to an officer using excessive force in carrying out an arrest, as well as in response to an unlawful arrest.
The People have the burden of proving that the officer was lawfully performing his duties and if they fail to meet that burden, the defendant must be found not guilty.
—David M. Greenwald reporting
Bottom line is the police officer has to use reasonable force under the circumstances to make the arrest/detention; and the defendant can only use REASONABLE FORCE to resist an arrest/detention IF THE ARREST/DETENTION WAS UNLAWFUL.
WHAT IS REASONABLE UNDER THESE CIRCUMSTANCES? What happened is rather murky. Unfortunately, the only people that really know what happened appear to be the officers at the scene and the defendants themselves. (Were there any other witnesses during the altercation?)
But the detention is lawful if the officer has articulable suspicion of criminal activity – not a very high bar to hurdle. One defendant was sweating heavily. We have already heard one officer claim he believed one defendant would not keep his hands out of his pockets after being told to do so – which gave the officer reason to believe the defendant might be reaching for a gun. The officer allegedly reached for the hand going into the pocket, and the defendant escalated the encounter by trying to hit the officer. Had the defendant calmly followed instructions and kept his hands out of his pockets, the situation probably would have never escalated – unless you believe the police were out for a random assault on whoever happened to come within their sights, something that does not seem very logical.
I’ve said this many times before – if a citizen has an encounter w the police, it is wisest not to resist. It can only end badly for the citizen. The police have the baton, the taser, the gun and backup. To resist is asking for trouble. To strike an officer is just plain stupid beyond belief. The recent Oakland subway shooting is a prime example of where resisting arrest can get you – DEAD.
Stacking a jury in your favor is common. DA’s do it all the time, if a defendant is black, you want the least number of black jurors. The DA can and do kick off all blacks and unless you can prove they did it for them being black, too bad. That is the problem with preempts, no justification or reason has to be given. The DA does not like people from Davis, they are all left loons (his words not mine) and since they question and are more educated and cannot be fooled as easy, if you are from Davis you already considered to be kicked off before the DA even meets you. The DA knows where each Jury if from so those from Davis are removed just like people of color are removed it the defendant is of color. Everyone in the DA’s office knows it, but try and Prove it?
The DA is a master at concealing the truth, truth is what he can convince others to believe. Just another reason our justice system is flawed.
Of course the Defense tries the same thing. Which is why trials become a game of “who can confuse or fool the Jury more, Wins”
“However, Ms. Sequeira objected that 10 of the prosecution’s challenges were against minorities, mostly Hispanics. Basically, she argued that DDA Palumbo systematically dismissed many of the potential Hispanic jurors.”
If this is true about the jury selection, then the justice system is even more flawed than I realized. What happened to… ones right to a trial by ones peers.
[i]”Stacking a jury in your favor is common. DA’s do it all the time, if a defendant is black, you want the least number of black jurors. The DA can and do kick off all blacks and unless you can prove they did it for them being black, too bad.”[/i]
In my opinion, the ‘picking the jury’ component of our legal system is bullsh!t. I don’t see why the prosecutor or the defense should have any say in who is on the jury.*
I think it’s far more reasonable to have an unbiased judge ask a prescripted series of questions to determine if each potential juror is fit to decide the case at hand in an unbiased manner, dismissing only those who are unfit to serve in the case at hand. (If we did that, I would think the defense could then appeal the verdict, if there was evidence to show the judge herself was not unbiased in her selection of the jurors.)
As I learned for the first time in the OJ case, there are professional consultants whose job is to pick jurors most biased in favor of your client, prosecutor or defense. Since most defendants are not wealthy, the high-paid consultants mostly benefit prosecutors.
*I have been in the jury pool around 6 times in my life. I’ve never been on a jury. Each time I have made it up to the 14 chairs (12 jurors + 2 alternates), the prosecutor has eliminated me for no given reason. I’m sure someone who has experience as a prosecutor knows what it is about me that makes prosecutors not want me as a juror. I really don’t know what it is. Were I a man of melanin, I’d probably think it was racial bias on their part.
I keep hearing “our Justice System is the best the world”. I do not know if that is true or not, but I do know the Jury selection process is Broken!
I went in for jury duty on Tuesday. There was only one active case so it was easy to analyze the situation. The case was pretty simple – a hit an run case where the defendant was charged based on circumstantial evidence and the the defendant claimed she was not involved because her car had been stolen. For a jury of 12 people plus 4 alternates, 60 potential jurors were called. The treatment of the jurors was good – they were reminded of their civic duty and thanked multiple times for appearing.
Let’s get to the selection process. First 7-8 people were excused due to hardship and that process seemed quite reasonable. Then 16 of the remaining pool was called up (including me) to the jury stand. The case was discussed in summary and each of the 16 people was asked 12 questions, mostly covering things like location of residence, make up of family, education, type of work and past experience with juries and the court system in general. There was some follow up by both sides (the DA and the defense attorney) based on the original set of questions.
Then the jury challenges started. Two people had stated they were engineers and two were financial analysts (I am one of those). Within minutes both of the engineers and both of the finance people were removed by the DA. So the original pool was reduced to 12 within minutes and of the remaining 12, 5 had shown significant difficulty understanding and answering questions.
I did not expect to remain on the jury due to my biased viewpoint, but I honestly I had not said anything up to that point that would have demonstrated any bias. Addtionally, the other financial analyst and the engineers had not demonstated any bias whatsoever. It was obvious, the DA did not want anyone on the jury who had the abilty to think systematically.
I am sure the defense also challenged a number of people (I was not there to watch).
I have two problems with the process –
The selection involved too many people -60 people for 16 slots is an absurd number. Too many challenges are allowed and too much time is being wasted. Rules need to changed and it would help if the County was forced to pay average wages to the jury pool. Jury pools are a misused (undervalued) resource and are treated accordingly.
It was obvious the defendant had no chance of being judged by a cross section of his/her peers. There is too much bias in the process, as groups of people are summarily excluded.
Rifkin’s thought are interesting. It would not be surprising or new to hear of a DA or for that matter a public defender choosing the best possible Jury and that might mean race, age, religion.. ( and if I were a da or pubic deffender I might do the same-if the other side was allowed to do it however, I see it is not really right. I liked Rifkin’s take, very good.
Now is there an Ombudsmin in West Sac? probably a good thing if they do not have one afterall what would they do? They could just say they were not there and therefore can not make a conclusion.
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 tasering shots?
..and they found nothing in their system… How? How? did he continue to resist arrest?????
As always, just wish their was a camera to see the defendent- continueing to resist that the cops must fear their own lives.
too bad the cops dont cary cameras. oh, but their cars do, but that too, as I have heard from.., can be turned off or not facing where it needs to go.
They attempted to taser at least once maybe twice but it did not work. The cop claims because he was on drugs, but I believe at least part of the problem was that he was thrashing around so much the prod did not stay in his skin.
Elaine: One of the questions that the defense raised yesterday is whether the officer had the training to assess whether he was intoxicated. He had not been certified at this point for being able to do such evaluations and the characteristics he noted could be explained by things such as language barrier, fatigue, and the fact that it was a warm summer night. Sweat is not a good indicator because (A) everyone sweats differently and (B) he has no idea what the individual was doing physically prior to his arrival. The defense is arguing that the officer in this case overreacted to a non-threatening situation and it escalated out of hand. We shall see.
There were three Taserings. Both officers claim that Ernesto Galvan did not react more than by yelling and stiffening, but that he grabbed one of the lead lines the third time and broke it, breaking the circuit. Officer Farrington testified that he, being in contact with Mr. Galvan the first two times, felt effects himself. The first time, he said he felt pulsations in Mr. Galvan’s body, and the second time he believes his right leg was touching one of the probes, and muscles in that leg contracted.
Officer Schlie, on re-direct, said that he did not recall it being a hot night, and that he himself was wearing a warm vest as part of his uniform.
[quote]Elaine: One of the questions that the defense raised yesterday is whether the officer had the training to assess whether he was intoxicated. He had not been certified at this point for being able to do such evaluations and the characteristics he noted could be explained by things such as language barrier, fatigue, and the fact that it was a warm summer night. Sweat is not a good indicator because (A) everyone sweats differently and (B) he has no idea what the individual was doing physically prior to his arrival. The defense is arguing that the officer in this case overreacted to a non-threatening situation and it escalated out of hand. We shall see.[/quote]
By that reasoning the police could never use proven outward signs of narcotic use. I don’t know how long Officer Schlie was an officer when this happened. He may not have been been to training on narcotics influence but you don’t have to go to training to know when someone appears to be on drugs and you don’t need to have the training to detain someone for appearing to be on drugs.
If the guy was sweating at 3 in the morning on a levy road and appears to just be hanging out is an officer to assume nothing suspicious is going on. AN officer can’t simply assume “Oh, this guy must have been out for a jog.”
The question that has been asked on this site is “was the detention reasonable and did the officer use reasonable force”. The officer attempted to detain the subject by grabbing his wrist after commands to remove his hands from his pockets. That doesn’t seem unreasonable. Once the officer is struck multiple times the situation changed.
I would like to know the race of potential jurors the defense removed from the jury pool.
Inre to the selection of the jury pool, would you prefer a professional jury (paid jurors who serve regularly on criminal trials)? That has been suggested as a possible solution…
[quote]If the guy was sweating at 3 in the morning on a levy road and appears to just be hanging out is an officer to assume nothing suspicious is going on. AN officer can’t simply assume “Oh, this guy must have been out for a jog.” [/quote]
How do you see a guy sweating at night? If it is 3 AM, by the river, not many lights out there. What was the temp that night? Did he just eat some jalapenos, was he nervous because the cops were coming up on him, was he ill or had the flu, did he eat food that was giving him a reaction, was he on prescription drugs that makes him sweat? Lots of reasons to sweat other than just drugs.
Can someone provide the ethnicity of those jurors dismissed by the defense.
Mr Rabbit,
Cops have flashlight, headlights, spotlights, and overhead lights.
There are lots of reasons to sweat. If he was ill or had the flu don’t you think it would be nice for the officer to stop and ask if he needed assistance.
There are lots of other reasons to sweat but you’re not being reasonable. Who goes out to a levy at at 3 in the morning to eat jalapenos or have a medication induced sweat session.
[quote]There are lots of reasons to sweat. If he was ill or had the flu don’t you think it would be nice for the officer to stop and ask if he needed assistance.[/quote]
It would also be nice if the cops could speak Spanish.
It would also be nice for people to learn the language of the country they choose to live in.
And is anyone going to give the race of jurors dismissed by the defense?
“It would also be nice for people to learn the language of the country they choose to live in.”
Maybe, but we since don’t live in that world or at least that community, it would make sense if the police officers trying to communicate had more than just flip cards with Spanish phrases on them in an attempt to communicate complex concepts to people on the street some of whom are not in the best frame or mind or already distrustful of authority.
“And is anyone going to give the race of jurors dismissed by the defense?”
There is only one person who posts on here who might have a guess, and I don’t think even she watched the whole voir dire process.
It would be nice if police officer could speak every possible language because they run into people who do not speak English. It simply isn’t practical. There is a long list of things that would be nice for the police to do.
Did the brothers in this case only speak Spanish?
If one of your interns was in the courtroom cor this story you should tell them to try to get all the pertinent information for the story, like the race of those jurors dismissed by the defense. It would give a more complete account.