Fourth Trial May Be Unprecedented and Raises Troubling Concerns

On Monday, the Yolo County District Attorney’s Office stunned many legal observers in pursuing a fourth trial in the case that has seen two hung juries in the 2010 calendar year alone.

“I’ve never seen one,” he said. 

While Professor Vitiello does not think there are statistics kept on such things, but he said, “Anecdotally, okay maybe two, maybe three, but four trials seems to me to be extraordinary.”

On Monday Chief Deputy DA Jonathan Raven indicated that prosecutors were moving in the direction of a fourth trial.

“We prosecute cases when we feel an individual is guilty and feel we can prove it beyond a reasonable doubt,” he told the Sacramento Bee.

Stanford Law professor Robert Weisberg called the move “unbelievably unusual” in an interview with the Sacramento Bee, but also added, “There is no constitutional limit on it whatsoever.”

Later in the week, Mr. Raven seemed more circumspect on the prospects of a fourth trial, telling San Francisco Weekly that they are not certain whether there will be a fourth trial.

“Our evaluation of this latest jury’s consideration of the case is ongoing,” said Mr. Raven.

Asked whether he thought Judge Fall could or would dismiss the case himself, Professor Vitiello was unsure and cited that there was no general legal principle on whether he should or should not.

He did offer that a motion to dismiss based on selective prosecution is a hard motion to win.

“The Judge has some discretion I think,” the Professor told the Vanguard, “I doubt there’s very much developed case law on the point for the reason that this is largely uncharted territory.”

Professor Vitiello said in fairness that after two 11-1 votes in favor of conviction, he could see why the DA’s Office would pursue a third case, which they did.  Such votes would suggest that the case is quite strong

However, Professor Vitiello said, “Now that you have a 5-7, it seems to me that the case is not getting stronger and at some point you just say wait a second.”

“One, can we really devote these resources, and then the other thing is [that] at some point defendants are entitled to be free from the repeated efforts to convict them – the anxiety, the resources that are devoted to defending themselves in court.”

Professor Vitiello stressed that this is not a problem of double jeopardy, but it begins to take on similar implications.

“The underlying policies are similar,” he said, and “at some point people are entitled to be free from the pressures associated with repeated prosecutions.  The state has far more resources than most people.”

Defense attorneys in this case were particularly outraged that the DA’s Office was indicating that they would continue to pursue this case.

In an interview with the Vanguard, Defense Attorney Anthony 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.”

Professor Vitiello believes that the continued prosecution was occurring in part to prevent a civil lawsuit against the City of West Sacramento from going forward.

It comes down to what he calls “issue preclusion,” where a party to the litigation is effectively prevented from pursuing an avenue in civil litigation based on a criminal court ruling.

Professor Vitiello argues, “Here, one of the things that the criminal case is going to turn on, is whether the defendants initiated the confrontation.” This will then affect the viability of the Galvans’ civil case against West Sacramento and the officers.

“If they are convicted then they’re going to be precluded from saying the police instigated the violence,” he said, “That’s why where you have a fairly trivial case, a misdemeanor assault, nonetheless, it may make sense from the state’s point of view, to get a positive finding for government so they can get the preclusive effect for litigation.”