If someone threatens a witness, but no one sees it, have they actually threatened the witness? If this sounds like the proverbial question about the tree falling in the forest, perhaps that is because the prosecution is losing sight of the forest through the trees.
The prosecution already has Eric Lovett facing serious felony charges of being an accessory to an attempted murder along with gang charges. But their insistence of adding and prosecuting him on a charge of dissuading a witness has caused Mr. Lovett’s case to be dropped and refiled, necessitating him to be severed from the original co-defendant trial and have a second preliminary hearing, and resulting in countless attempts by the prosecution or court staff to quash subpoenas.
The fallout here is broad, as it has ground an unrelated murder trial, the alleged killing of a toddler in Davis by Darnell Dorsey, to a halt as well.
Last week Yolo County DA Jeff Reisig was complaining about Prop. 47 leading to a rise in crime in Yolo County, but if Mr. Reisig is so concerned about rising crime, why is he tying up court time and his staff’s time with such trivial matters?
This week, after numerous hearings and attempts by the defense to put on the stand percipient witnesses to the in-court conduct of Mr. Lovett, we finally heard what the victim in this case thought of the alleged threat by Mr. Lovett in court.
Mr. Lovett is charged with dissuading a witness for criminal street gang purposes, with officers present in the courtroom at the time claiming to have seen him making gestures toward Ernie Sotelo who was testifying at the time, as though Mr. Lovett was going to “slit his throat” if he continued to testify.
However, as the Vanguard reporter noted, when Deputy DA Robin Johnson asked Mr. Sotelo what he saw, Mr. Sotelo “told the court that he never saw Lovett making gestures toward him, and if he did he would have most likely flipped him off, said something, made a face at him or made the gesture right back at him.”
As we have previously reported, the complaint stems from the second day of the original preliminary hearing on February 19, 2015, when the complaining witness, Ernie Sotelo, testified for the prosecution. The next day of the preliminary hearing, March 3, 2014, Officer Anthony Herrera testified that on February 19, 2015, he had witnessed Mr. Lovett make gestures toward Ernie Sotelo as Mr. Sotelo testified, and the officer interpreted the gestures as threatening.
Officer Herrera claimed he saw Mr. Lovett “do it over and over again.” He also testified that Deputy Gary Galvan told him that he, Dep. Galvan, saw Mr. Lovett “do it several times,” “the same thing, the same motion with the finger.”
Deputy Galvan reportedly saw Mr. Lovett make this motion “five or six more times, doing it very slow.”
Officer Herrera said, “[Dep. Galvan] said at first before Ernie Sotelo came in to testify that [Lovett] was jovial, laughing and joking, but as soon as Ernie Sotelo came up here to testify, he said that that’s when he said he paid particular attention, said that he was – looked to be very interested in looking at Sotelo, and would like grit his jaw to where you could like see the muscles clenching in his face. He said he wasn’t joking and jovial up to that point, after that point, excuse me, when he was testifying.”
At this point, the only people who apparently witnessed Mr. Lovett doing anything are West Sacramento Police Officer Herrera and Yolo County Sheriff’s Deputy Galvan.
While the incident was captured on video, the video is admittedly inconclusive as to what happened. Moreover, the need for witnesses to add context to the video footage is necessary.
The defense has attempted to subpoena Judge Richardson, who was presiding over the trial, Deputy DA Amanda Zambor who was prosecuting the case – until it became clear she might be a witness to the conduct of Mr. Lovett, and Court Reporter Abby Waller-Reisig, the wife of DA Jeff Reisig. However, subpoenas for all three were quashed under the guise that they didn’t see anything – even though the defense is arguing nothing happened,and they want to use the testimony to prove it.
Every neutral observer has come to just about the same conclusion – Mr. Lovett is clearly moving his hands, but no one can say that those gestures are actually intentional threats to the witness.
Rod Beede, a counsel for a co-defendant, at a trial setting conference in July 2015 said that it “would be hotly contested what, if anything, Mr. Lovett did when the witnesses (sic) was on the stand. My entire staff and I looked at the tape two or three times and it was confusing at best.”
Judge Rosenberg was similarly equivocal on the content of the video. “I saw Mr. Lovett make certain movements with his hand, which frankly surprised the Court, took me aback,” the judge stated. He held Mr. Lovett to answer to the charges on December 14, 2015, but reasoned that a jury “could readily determine that Mr. Lovett was just fidgeting, but I also believe that a jury could determine that he was making motions like a slashing of a neck to intimidate a witness that was on the stand.”
Judge Dan Maguire became the latest to make a judgment on the video. He repeatedly noted that there was really nothing to see, he stated that what the video shows is “subject to interpretation,” and he acknowledged that the first time he watched it, he missed the hand gestures.
Given that the witness did not even see the conduct in question – and if he had, he would have reacted as he should have (at least in street terms) by flipping him off in return, perhaps we should take the position that this is really about no harm, no foul.
Even if Mr. Lovett had been attempting to intimidate the witness – a claim that really has no proof at this point – the fact is that the witness was not dissuaded, the witness was not intimidated, and the witness never even saw it.
We apparently have a rising crime problem in Yolo County and yet the district attorney’s office has preoccupied the courts with such trivial matters in a case where there are far more serious crimes that they have more solid evidence to support – we are left to wonder exactly what is going on in that office.
Intimidating witnesses is a serious charge and a serious problem in the court system. By pressing this matter, however, the DA’s office risks undermining its own efforts by wasting resources and becoming the proverbial boy who cried wolf. If you see witness intimidation in every hand gesture and every exchange, you risk diminishing the validity of it when it really occurs.
In this case, I think it is safe to say – no harm, no foul. Let’s move on to more serious matters.
—David M. Greenwald reporting
While I completely agree that we should move past the issue of the meaning of the ambivalent hand movements as rapidly as possible, I do think that there is something worth revisiting here. That is the validity of allowing other witnesses who say they saw nothing to avoid testifying when the very issue at hand is the ability to observe what did or did not occur. Surely the testimony of those who did not observe this intimidation would be as valid as the word of two officers who believe that they did see it. Unless, of course the goal is to slant the testimony towards the viewpoint of the two officers who will most likely have more sway with the jury than does the defendant. And if this tilting of the “scales of justice” is in play, that is surely worth spending more time on.
Or, is the reason the “victim” testfies that they ‘saw nothing’ is that the intimidation was successful, and the victim is afraid to make things worse by testifying to yet another charge?
That entered my mind too Hpierce.
The major problem with that theory is that he testified for hours on the main charges.
pierce and BP
I thought about that possibility too. All the more reason to have the input of other witnesses who had the opportunity to observe the behavior instead of relying on those who have an apparent interest in the outcome ( the witness and the police officers).
Again didn’t stop the witness from testifying on the core charge (where the witness was shot) – https://davisvanguard.org/2016/03/witnesses-take-stand-lovett-trial/
Yes, but he (witness) also didn’t dig any hole [if any] any deeper, and would have been hard put, given the fact that he was already identified as a witness [and had therefore obviously told the prosecution as to what he witnessed], to either ‘back down’ or perjure himself. Not saying it happened that way, but hope you understand the concept of “reasonable doubt” as to what may, or may not have happened… it is indeed, a two-edged concept… there is no “proof” that intimidation occurred/was intended/successful, and there is also no “proof” that ‘nothing happened’…
All we know is that an additional charge, for intimidation, will very likely not withstand the ‘reasonable doubt’ criteria for a conviction on that specific count.
Those charged with public policy should consider the implications of actions and behavior that make the word of alleged gang members more credible than the decisions and actions of the DA’s office.
Mr Greenwald .. as someone who has sat in a court room many times, could you agree with me on one thing? When a witness is testifying, where is everyone’s attention? On the witness perhaps? How often would one look at the defendant? Rarely, would you not agree? Outside of maybe during a witness ID when asked where the the suspect is seated and what they are wearing usually??? Especially with a reporter, your attention would be on the witness and your Mac Book I would imagine.
Police Officers are trained observers. They look around, investigate, watch the “threats”. What bigger threat is there in that courtroom than the defendant? (Public Defender jokes aside)… So naturally, the Bailiff, Deputy, and Detective are watching the defendant, even though he is in custody, he’s the threat. Why would they not be the one’s to see this menacing gesture?
Love how you would automatically question someone who has dedicated their life to protecting you from such foul gang members vs someone willing to go to this length for an “alleged” $30 debt. Siding with someone who has dedicated their life to using and selling meth, theft, assaulting people, and all around debauchery. Defended by someone who self-admittedly has known him since he was a child, and willing to burn down anyone trying to lock him up.
Or let’s use an example. Say your are enjoying yourself at a crowded farmer’s market or hemp festival. And someone pulls and points a gun at you. You do not see it because you are engrossed with something else. But an Officer assigned to security at this event sees it, because that’s his job. Did it not happen because you were unaware? No, it is still a crime and one worth enforcing .. because you are as important to this society as Mr Sotelo, Mr Reisig, Ms Sequera, and Mr Hererra … and especially Me.
All good points. However, you still end up with the video that everyone who has watched believes is inconclusive and the problem you end up with is that the police officers are not neutral observers.
theotherside
“as someone who has sat in a court room many times, could you agree with me on one thing….?”
I actually do not necessarily agree with the point about what is more likely to have been observed by others in the courtroom. While it is true that I have almost no courtroom experience, I am a highly trained observer in a different field. When a patient comes to see me alone, my attention and observational skills are solely focused on her. However, when a patient presents with family members or friends, my observations include not only the patient herself, but also all others present for their reactions to the exchange since that can frequently provide a lot of information. ( The spouse who is shaking his head “no” when I ask if she is taking her medication as prescribed, for example)
I can certainly imagine that like in the office, much information could also be gathered by watching the effect, if any, that the evidence being presented had on the defendant. I think that the bottom line is that we simply do not know what was or was not seen until we have asked. And so that we are comparing apples to apples, asked under oath.
“What bigger threat is there in that courtroom than the defendant? (Public Defender jokes aside)…”
“…even though he is in custody, he’s the threat.”
Wow. Innocent until proven guilty is not exactly something on your mind, huh? Until the jury’s verdict is read, that defendant is innocent. But you have already decided he is the biggest threat in the courtroom. Perhaps the biggest threat is the prosecutor , who is thinking about his next promotion, or the cash for conviction the county will receive.
“Police Officers are trained observers.”
Many professions are trained to observe. Psychiatrists come to mind. And social workers. They spend more hours in formal training than cops do.
“” …watch the “threats”.”
And invent a threat if none exists, like the armed cop who handcuffed me, when I was wearing nothing but a large tee shirt, and my son, in our own home, when we were being polite and cooperative and respectful.