Defense Attorneys Appalled At the Waste of Resource –
Right now a trial readiness conference is set for January 31 and a fourth trial set to begin on February 7 – assuming there are no further delays.
Defense Attorneys Deputy Public Defender Martha Sequeira and Anthony Palik, a private attorney from San Francisco as well as from the Sacramento area, requested that Judge Timothy Fall dismiss the case outright. However, Judge Fall deferred judgment, instead requesting that the defense submit the motions in writing by January 3. Ms. Sequeira is also filing a dismissal motion, citing the interest of justice as basis.
When Judge Fall questioned why the DA believed it could prevail after three attempts, Ms. Palumbo hedged and said they were reserving their right to re-try. But the statement that Yolo Chief Deputy DA Jonathan Raven gave to the Sacramento Bee indicates that is the plan.
He told the paper that they are “proceeding in the direction” of a fourth trial and added, “We prosecute cases when we feel an individual is guilty and feel we can prove it beyond a reasonable doubt.”
The DA’s Office does not generally return inquiries from the Vanguard and this case is no exception.
However, neither defense attorney in this case pulled any punches. In an interview with the Vanguard, Mr. Palik indicated, “I believe that the Prosecutor is pursuing a selective prosecution in violation of my client’s rights under the 14th and 5th Amendments of the Constitution, with regard to the denial of his equal protection under the law.”
He argued,”if this were not a Latino defendant then they would not continue to prosecute a case that cannot be won.”
Likewise, Deputy Public Defender Martha Sequeira was stunned by the DA’s decision to retry the case.
She told the Vanguard on Monday, “I know I have only been an attorney for seven years, but I have never in my life seen a misdemeanor trial being tried four times. My client has been hung on a misdemeanor three times. The idea that the District Attorney is going to file or try it a fourth time is disheartening.”
She was particularly dismayed due to the professed limited resources that both her office and the DA’s Office have and the seeming waste of taxpayer money.
“As a person who lives in this county and pays taxes in this county and owns property in this county – it is really disappointing to see that the District Attorney’s Office would think that [it is logical to be] using our really limited resources in such a matter – because that’s disappointing,” Ms. Sequeira told the Vanguard.
She added, “It seems to me that the Yolo County District Attorney’s Office is more interested in representing the police officers in their individual capacity of the West Sacramento Police Department than they are in representing the people of California, specifically the residents of Yolo County.”
From the standpoint of Attorney Anthony Palik, who was co-counsel on the first trial as well, the verdict and prosecution come down largely to racial bias.
The prosecution had dismissed a disproportionate number of Latino jurors prior to this trial. Judge Fall denied a Batson-Wheeler motion that these juror challenges were improper. But according to Mr. Palik, the make-up of the jury accounted for much of the split.
“The five jurors that wished to convict, they were – all of them – upper middle class, Caucasian jurors, from Davis,” he said pointedly. “I think that that’s an example of how unfortunately racially polarized this case is.”
He was quick to dismiss any notion that he thought the jurors were racists in any way.
“I don’t think the jurors that voted to convict are racists,” Mr. Palik told the Vanguard. “But I do think they have a different perspective on the situation than the people who live in Woodland and West Sacramento because with the exception of one of the jurors, who was not white, the jurors who decided to acquit were all either Latino or from Woodland or West Sacramento.”
He added, “In regard to bias, I cannot say that there is an invidious discrimination on the part of the jury, meaning a wrongful intent to discriminate, but I do think that there is a disparate impact which shows itself in terms of a divided community on those issues.”
Unlike the previous trial, most of the jurors preferred to remain anonymous and none wished to speak to the media. In the previous trial, Jeff Austin, the lone holdout, spoke out strongly against the jury’s verdict and process.
While Mr. Palik indicated that he did not want to impose much on the jurors, he did say that from his conversations, “Clearly the jurors that wanted to acquit did not believe a word of the officers’ stories.”
“This was always our understanding of the situation, that there are so many inconsistencies in the officers’ stories, that I don’t believe them either. I do believe that something very terrible happened that night and that we aren’t learning the truth about it,” he added.
While Ms. Sequeira did not wish to comment on whether the officers should have been criminally prosecuted, Mr. Palik indicated that he thought that they should have been prosecuted.
“Unfortunately however, the United States Attorney who was investigating this case wanted to wait for an outcome in the state criminal proceeding which is understandable, and during that time the statute [of limitations] ran for the filing of the federal criminal action against the officers. Although I do know they were investigated and had there been an acquittal, there would have probably been a federal criminal prosecution of them,” he told the Vanguard.
He told the Vanguard that the pending civil suit cannot proceed until this criminal case is finished
The suit according to Mr. Palik charges, “The officers violated Ernest Galvan and Fermin Galvan’s rights under Section 1983 Title 42 of the United States Code to be free from excessive force to be used by the officers in this case.”
Ms. Sequeira was able to cast serious doubt onto the testimonies of both Officer Schlie and former-Officer Reeder.
During her closing remarks, she was able to show that former-Officer Reeder overreacted to a non-threatening Fermin Galvan. She got the jury to see Fermin Galvan as a non-threat, as he was 30 feet from the altercation and was neither participating nor shouting towards it. Yet Mr. Reeder attempted to apprehend Mr. Galvan, who freed his wrist from his grasp before being taken to the ground, suffering injuries.
“Based on what we know of the situation, the grabbing of my client [by Mr. Reeder] was unlawful,” she told the Vanguard.
“I think that based on the totality of the circumstances that were known based on the incident thus far, my client had proven he was not a threat,” Ms. Sequeira added. “He was thirty feet away from the altercation when then-Officer Reeder arrived. He was in no way encouraging or was there any evidence to support that he even had the idea to engage in the struggle on behalf of his brother.”
She believes Mr. Reeder could have simply stood there and watched Mr. Fermin Galvan, while the incident between the other officers and Ernesto Galvan was occurring.
“Instead he chose to grab him and attempt to put him in handcuffs when he had done absolutely nothing wrong. So I think that the detention, based on the totality of the circumstances, was unlawful,” she said.
On the other charge, she remarked, “There was evidence through the trial that earlier in the altercation Mr. Fermin Galvan took a step towards the struggle. When he took a step towards the struggle, there’s evidence that Officer Schlie said stop and said stop again, and when he said stop the second time, he simultaneously pushed Fermin Galvan back.”
She added, “That was the [PC] 148, the People allege that because he had to say stop a second time that that was a delay in the officer’s duty. That was a delay on Fermin Galvan’s part on delaying the officer in his duty.”
Fermin Galvan would be acquitted on that charge. The Vanguard has previously reported that the acquittal was on the other charge, the PC 69 of resisting former-Officer Reeder, but that is due to a discrepancy in the Criminal Department’s database, which they are looking into.
Ms. Sequeira was also able to attack the main charges during her closing statement.
Officer Schlie’s contention was that Ernesto Galvan appeared under the influence of a controlled substance and also he was putting his hands in and out of his pocket.
To back up the contention of under the influence of a controlled substance, the officer stated that Ernesto Galvan was sweating a lot on a night that was not particularly hot and that he wouldn’t make eye contact. However, none of the symptoms that he mentioned are official symptoms that trained officers would be looking for, according to earlier testimony.
Ms. Sequeira pointed out, during her closing comments, that he was never charged with being under the influence, which is a crime and would have anchored the resisting arrest charge. Ms. Palumbo tried to explain away the lack of a charge, arguing that they did not have time to administer a blood test. But the hospital certainly would have, particularly in the course of doing surgery. What testing was done in the hospital was inconclusive and was deemed of no consequence to the immediate surgery, and so was, in court proceedings, excluded from evidence.
Moreover, the argument about his hands in his pockets was not backed up by other facts. Officer Schlie pointed his partner to the other car down the road rather than asking for assistance with a possibly-armed man. He never drew his weapon, and it may be unclear whether he ordered Mr. Galvan’s hands to be shown. Instead he walked next to him, almost casually. In short, Ms. Sequeira was able to show to the jury that Officer Schlie’s actions were inconsistent for dealing with a subject he thought reasonably could be armed.
There were other problems with the officers’ stories, including the fact that Mr. Galvan was beaten so badly he lapsed into a coma and yet they argued he continued to resist. There was the testimony from then-Officer Reeder that Ernesto tried to kick him with his shoes when he was on the ground, except that the other officers said he had kicked off his shoes almost from the start.
Mr. Palik told the Vanguard, “I think that the officers’ stories are clearly fabrications. Every time we do a trial the story’s different. I believe that a lot of their story is the result of an afterthought to explain their misconduct, but I can’t divulge any further details in that regard. There could be possibly some new testimony coming to light at the new trial, but I cannot say what that would be.”
It is unclear how the beating of Ernesto first started.
“No one really knows and even Ernesto can’t remember because of the brain damage,” Mr. Palik told the Vanguard. “But we do have information that what occurred that evening is not what the officers claim it was. In other words a lot of attention is focused on whether or not Officer Schlie grabbed Ernesto’s wrist and whether he pulled away. And there’s a story that the officers tell, that the brothers sort of voluntarily walked over to the police car after a casual greeting.”
He added almost teasingly, “At the next trial, I think you will find out that, in fact, the incident was a lot shorter than everyone believes based on the officers testimony, and that the sequence of events was not what the officers claim it was. That’s all I can say.”
When asked about the officers continuing to beat Mr. Ernesto Galvan even after he was handcuffed on the ground, Mr. Palik responded, “All I can say is it looks bad [beating Ernest Galvan while handcuffed and on the ground] and I can’t think of a reason why any police officer would do such a thing, except for reasons that I hope aren’t true.”
One other point that has been a puzzle is how much English the brothers understand. Martha Sequeira was not sure on that issue other than the fact that every time she communicated with her client, she did so through an interpreter.
Officer Schlie, who admitted he spoke no Spanish, apparently used a phrase in Spanish, as the Vanguard previously reported, that he thought meant take your hands out of your pocket. However, it is a phrase that several Spanish speakers I spoke to were not familiar with, nor was a court-appointed interpreter, according to Ms. Sequeira.
“The court-appointed interpreter had never heard the phrase,” said Ms. Sequeira.
The Vanguard will have more on this story in the coming days.
—David M. Greenwald reporting
[quote]Yolo Chief Deputy DA Jonathan Raven told the paper that they are “proceeding in the direction” of a fourth trial and added, “We prosecute cases when we feel an individual is guilty and feel we can prove it beyond a reasonable doubt.”[/quote]
Perhaps this lack of good judgment and “feeling” they can prove something is the reason the DA’s office continues to waste time and money on cases they can’t win. No wonder the DA’s office has to hide evidence and withhold information just to get convictions. Obviously if it takes four times to try and get a guilty verdict, the DA’s office is hoping they can pick 12 dumb jurors they can fool into voting guilty. What joke of the justice system.
[quote]The DA’s Office does not generally return inquiries from the Vanguard and this case is no exception.[/quote]
Well that’s a surprise, the DA’s does not talk to anyone that questions them or does not repeat their lies and false and misleading press releases. The DA’s office actions just goes to prove more and more that they hide behind their office and do most things under the cloak of secrecy so no one really knows what they are up too.
[quote]Those who have nothing to hide – hide nothing ; Under the unethical leadership of Jeff Reisig, The DA’s office is always hiding behind or under something – wake up people[/quote]
Here’s what the Bee reported today:
[url]http://www.sacbee.com/2010/12/14/3255534/after-three-hung-juries-yolo-da.html[/url]
Officer Schlie, who admitted he spoke no Spanish, apparently used a phrase, as the Vanguard previously reported, in Spanish that he thought meant take your hands out of your pocket. However, it is a phrase that several Spanish speakers I spoke to were not familiar with, nor was a court-appointed interpreter, according to Ms. Sequiera.
What was that Spanish phrase?
mano sorribes (my guess at the spelling of the 2nd word)
[quote]“Unfortunately however, the United States Attorney who was investigating this case wanted to wait for an outcome in the state criminal proceeding which is understandable, and during that time the statute ran for the filing of the federal criminal action against the officers. Although I do know they were investigated and had there been an acquittal, there would have probably been a federal criminal prosecution of them,” he told the Vanguard.
He told the Vanguard that the pending civil suit cannot proceed until this criminal case is finished[/quote]
This is all about the money. The DA is trying to save his friends in West Sac and save the county money from a law suit. This is outrageous, enough wasted time and money! Let these men go and in ood faith the county should offer them a settlement. Too much money has been wasted on this alleged “Misdemeanors”!
What an abominable move! Are they serious? SMH….
“The DA is trying to save his friends in West Sac and save the county money from a law suit. “
It’s worse than that. The county is spending money on a trial to save West Sac money from a lawsuit (and really YCPARMIA – the county risk management agency)
mano sorribes (my guess at the spelling of the 2nd word)
Then probably, “manos arriba”.
That could be…that phrase was not mentioned, that I heard, in the second trial, but Mr. Palik remembers something like that in Officer Schlie’s 2007 testimony…still unclear that any commands were understood, and defense appears to be contending that they even existed.
dgm: “”I don’t think the jurors that voted to convict are racists,” Mr. Palik told the Vanguard. “But I do think they have a different perspective on the situation than the people who live in Woodland and West Sacramento because with the exception of one of the jurors, who was not white, the jurors who decided to acquit were all either Latino or from Woodland or West Sacramento.””
The jurors who voted to convict are not racists, but voted to convict bc they are white and biased – LOL The third trial sounds like there was jury nullification on the part of Hispanics, just as in the OJ Simpson case (let’s stick it to the whites with a not guilty verdict). Racial bias can work both ways…
From the Sac Bee: “The brothers are suing the West Sacramento Police Department in federal court, saying the beatings violated their civil rights.
Michael Vitiello, a professor at Sacramento’s McGeorge School of Law, said that may be playing a role in the continued prosecution. Winning convictions against the brothers would effectively put an end to the lawsuit, which seeks more than $12 million in damages from the West Sacramento Police Department.
Weisberg agreed: “The cops have to maintain an aggressive and confident posture on the criminal charges so as not to lend any credence to the civil rights suit.””
So it appears the prosecution may very well be trying this case a 4th time to protect the West Sac Police Dept. rather than truly representing the people.
It would really be nice to know what the truth was that night, but unfortunately this case comes down to “he said, he said”. You can bet your bottom dollar the prosecution will try and get as many whites on the jury as possible, and the defense will try and get as many Hispanics on the jury. Good illustration of why it is so important to make sure you register to vote and serve jury duty when called.
Shame on the DA’s office. You should know when to quit.
This will only tarnish people’s opinion of you and make them question your motives even more.
[quote]which seeks more than $12 million in damages from the West Sacramento Police Department.[/quote]
So the DA is trying to avoid $12 million of our tax payer’s money by wasting how much of our tax payer’s money? I’m tired of hearing the DA and County complain about how they don’t have money in one breath (laying off staff, etc) and then in the next breath they are about to prosecute a misdemeanor for the 4th time. They should stop wasting our tax dollars and our jury pools.
Elaine:
A few points, I think Palik’s point here is that what is happening is not at the conscious level. It has to do with people’s experiences are with the police. Because it comes down to whether or not you think the police are lying.
I think if you watched the trial, you would think they clearly were because their explanations do not make much sense, they are contradicted all over the place, and their claims change demonstrably from trial to trial.
Palik hit the nail on the head, they came up with the explanation after the fact and have changed the story in each trial.
What is the evidence that the brothers behaved as the police stated? The police’s own statements.
Why would they lie? Who knows, maybe they completely messed up in their response, jumped to conclusions and things got out of hand. We don’t know.
“It would really be nice to know what the truth was that night, but unfortunately this case comes down to “he said, he said”.”
I agree, but since it comes down to he said, he said, then you have to look at the consistency of the police’s accounts and err on the side of acquittal.
“You can bet your bottom dollar the prosecution will try and get as many whites on the jury as possible, and the defense will try and get as many Hispanics on the jury. Good illustration of why it is so important to make sure you register to vote and serve jury duty when called. “
True.
There is another factor in this. Jeff Austin plays a huge unspoken role in the change from trial two to trial three. His observations allowed the defense to mitigate for people’s assumptions and I think that played a huge role in the change in outcome. That and the attorneys in this version did a better job and they are staying on. I don’t see how the DA is going to defeat this defense team even in ten tries.
So lets see here, two Hispanic males are walking down the street talking quietly between themselves at about 3:A.M. in the Bryte neighborhood of West Sac. They are not observed by the police who stop them to be breaking any laws. An officer who speaks no Spanish attempts to tell one of the brothers to remove his hands from his pockets, in Spanish, and when the guy does not comply grabs his arm, thus initiating a scuffle. Other officers then join the party and beat these two guys to within an inch of their lives. They are arrested for resisting arrest.
Five years and three trials later we learn that the brothers have filed a twelve million dollar federal civil rights suit against the West Sac Police Dept.
Having failed to secure a guilty verdict against the brothers in the first three trials, District Attorney Jeff Reisig wants to try them a fourth time. A guilty verdict would pretty much ruin the brother’s chance to recover damages from the West Sac Police Dept. in their civil rights suit for unreasonable force.
So the taxpayers of Yolo County get to pick up the tab for a fourth attempt to find the brothers guilty, in order to protect the West Sac Police Department from responsibility for their outrageous behavior.
Any one who has not already done so, please take the time to follow this link http://www.sacbee.com/2010/12/…lo-da.html to the Sac Bee story on this case, and have a good look at the photo of the permanent damage done to Ernesto Galvin’s head. A picture is worth a thousand words, and this photo tells the story of excessive force, period. It is not necessary for police who greatly outnumber unarmed suspects to put dents in a suspects skull and a six inch gash in his scalp. And it is not necessary for Yolo County to expend dwindling precious taxpayer funds to protect this kind of brutality under color of authority.
This kind of story leads me to conclude that here in the land of the free, where we have more of our citizens behind bars than any other country on Earth, we are in fact turning into a police state. Any judge who fails to throw out further prosecution of these men deserves to be thrown out at the polls. And Reisig definitely needs to go. Everybody please pay attention, inform those who do not read the Vanguard, and come election time, remember how this one ended, . I know I will.
lyah: ” I’m tired of hearing the DA and County complain about how they don’t have money in one breath (laying off staff, etc) and then in the next breath they are about to prosecute a misdemeanor for the 4th time. They should stop wasting our tax dollars and our jury pools.”
I think you make a very fair point here…
rb: “A picture is worth a thousand words, and this photo tells the story of excessive force, period. It is not necessary for police who greatly outnumber unarmed suspects to put dents in a suspects skull and a six inch gash in his scalp. And it is not necessary for Yolo County to expend dwindling precious taxpayer funds to protect this kind of brutality under color of authority.”
It does seem like over the top behavior on the part of the police. I find it hard to believe that the two officers could not bring this situation under control more effectively and with less physical damage to the suspects. Lets look at the facts. Neither defendant was armed w a weapon, and as far as we know were not on any drugs like PCP which would have made them unusually strong. The two officers had handcuffs, billyclubs, tasers, guns and the upper hand. And yet the police officers were somehow unable to subdue the two suspects – except by clubbing one unconscious? Seems like poor police work to me. Frankly, I’m a bit surprised the first two juries came so close to a conviction. The only reason I can think of is they figured if a suspect doesn’t cooperate w the police, then they get what they deserve – but that is sheer speculation on my part…
dmg: “Palik hit the nail on the head, they came up with the explanation after the fact and have changed the story in each trial.”
Sounds like the officers’ change in story can be used in 4th trial against them (impeachment) by the defense. But that “change in story” did not occur until after the first trial, right? So the first jury would not have the benefit of knowing the police changed their story, right? I guess I’m just puzzled why the first jury came so close to convicting the defendants, if things are as you say they are. My gut I think, had I been on the jury, would have told me that two fully armed police officers would not need to club unconscious a defendant who had no weapons and was not on something like PCP.
However, I will say that I would also tend to think the police had some credibility when they claimed the defendants did not cooperate, and is the reason the entire matter escalated. My thought is perhaps the police were more convincing in the first trial in making the jury believe the noncooperation of defendants was very egregious. But I still cannot get past the inequities of power here. The police are fully equipped/loaded w weapons, the defendants have no weapons and are not on PCP or anything like it.
This case just reminds me too much of that other recent case in Woodland, where the police tasered then piled onto the defendant, and killed him by suffocation. Good police work should entail better methods of apprehension/detention. But along with that needs to be citizen education. I don’t think the average citizen understands what is expected of them in terms of the law when it comes to consensual stop; detention; arrest. Citizens should understand what the police can/can’t do; and what the best course of action is under each scenario.
It has occurred to me that perhaps we have not clearly reiterated that not all the charges in the case have been misdemeanor charges. The two against Fermin were both misdemeanors (although the PC69 was originally charged as a felony, then reduced shortly thereafter to a misdemeanor). These were a PC69 Resisting executive officer…and that apparently against Officer Reeder (who did the leg sweep), and a PC 148(a)(1) Resisting or obstructing peace officer…apparently against Officer Schlie (who was struggling with Ernesto).
There is still discrepancy about which of these two charges received a Not Guilty verdict, as the court’s database and the signed jury verdict form identifies the PC69, but all the attorneys understood the PC148(a)(1) to be the one receiving an acquittal.
The four charges against Ernesto Galvan are two FELONY PC69’s, one each against Officers Schlie and Farrington, and two misdemeanor PC243(b)’s, Battery on a custodial officer…again one each against each of those officers.
As a former Deputy DA, whenever you have a PC 148 with injuries on a suspect, you look at the officer’s behavior.
Furthermore, the matter of the Federal Civil Rights action by these individuals is much more complicated than merely coming out of Yolo County’s $. It simply does not.
Additionally, no one has mentioned the fact that not only have these men been physically injured and forced to be tried repeatedly [apparently unfairly] but what about the cost of their defense, lost wages, etc. No one ever [other than people in their positions or honorable prosecutors with a brain] considered this factor. O.J. had a ton of $ to spend on his defense. Is there any indication that these people do? And even if they have a public defender, there are ancillary costs which accompany being tried 4! times. Are the individuals able to work while they are being tried 4x for a non-crime?
Add to that the fact that the Federal Civil Rights Action is a contingency case which means a very smart Federal lawyer evaluated all of the evidence and took the case without charging any money. In other words, he/she has decided the cops are wrong/dirty (and this is a very high standard due to immunity law) and he/she will win and recoup 1/3 of the judgment. This is the customary contingency fee. Why would anyone at the highest level of Federal litigation take on a loser? Reisig could not carry his/her briefcase. I have done a 1983 action and believe me, Federal court is not for dummies.
This is unbelievable and Raven’s comments are STUPID!
” I guess I’m just puzzled why the first jury came so close to convicting the defendants, if things are as you say they are. My gut I think, had I been on the jury, would have told me that two fully armed police officers would not need to club unconscious a defendant who had no weapons and was not on something like PCP.”
Elaine: I just think the lawyers this time did a better job of laying out the case. And I think the more this goes on, the more the officer’s testimony will change and the more they can pin these guys to their previous testimony.