It was a strange two days, to say the least. Tuesday started with Antwoine Perry dismissing his attorney, as we understand it, mainly for financial reasons. The other four co-defendants resumed their contentious hearing on Tuesday morning before a family emergency for Deputy Public Defender Emily Fisher forced a stoppage for the day on Tuesday.
Wednesday was delayed at the outset, as it was clear there were discussions. Finally, right after lunch a deal was announced. In order to understand what this all means, we have to go through this step by step.
So here is the upshot: the defendants did plead to a felony resisting arrest. However, it carries with it a deferred entry of judgment (DEJ). That means if the defendants do not commit new crimes – and none of them have a criminal record – and they complete a court required restorative justice program, then a year from now the charge will be dismissed.
They also plead to a misdemeanor Penal Code section 242, simple battery. They will have a year of informal probation – meaning they basically do not have to check in or report to probation, they are not searchable, and again in a year if they remain law abiding, that probation ends and their attorneys can then filed a 1203.4 petition to remove the misdemeanor from their record.
Bottom line is that if the defendants do not commit new crimes in the next year and complete their restorative justice program, they will have no convictions on their record as of September 5, 2018.
For those who wanted to see the charges dropped – this was the most reasonable mechanism for that to occur.
However, what is clear talking to Mark Reichel, who represented Elijah Williams on the record and other attorneys off the record – nobody really regards this as a great outcome. The sense I got is they wanted to fight these charges, they felt like these kids were good kids and were victimized because of their race and that justice was not done by this outcome.
But, as Mark Reichel explained, “We felt it was in the best interest of the clients.” He explained, “The definition of a settlement is that everyone’s unhappy.”
They are happy it’s over, but not satisfied. “It’s not the outcome we wanted when the case started,” Mark Reichel said.
But as he explained, “Whenever you go to a jury trial, there’s always a risk.”
He said, “This gives him a chance to establish his good behavior. In one year, the DEJ is gone. The misdemeanor, we are going to 1203.4 to take it off his record. One year from now, he’ll hopefully have no record.”
Mark Reichel added, “There’s no doubt that at least going as far as we did, that the city of Davis is going to make changes in how the police handle crowd control in the future.”
The reality of the situation is that one side of room believes that the defendants in this case attacked and beat up a bunch of police officers. The other side believes that the police officers instigated this confrontation starting with their approach with the U-turn and that the defendants did not reasonably know they were police officers and were acting in self-defense.
With this case settling, we will not have a jury to resolve that tension. From my standpoint, having watched the video over and over again, this was always going to be a close call as to the outcome.
The defense attorneys, by continuing this case, risked a jury not seeing the evidence in the same way they did and exposing their clients to potential multiple felonies and potentially prison time, given the severity of those felonies.
Mr. Reichel did not get a sense for why Ryan Couzens agreed to settle the case on these terms. During his brief comments he cited their age, lack of criminal records, and the restorative justice process as reasons for why he was agreeable to agreement.
But I suspect he also saw that this was going to be a difficult case on which to gain convictions – it would have been a long preliminary hearing, a complex trial, and potentially a hung jury at best.
This is also a big win for Mayor Robb Davis and those who believe in restorative justice as a better approach to criminal justice. Behind the scenes, the mayor pushed for a restorative justice approach that eventually the prosecution and defense agreed to.
This will result in sessions where the police officers and the defendants will sit down and have a chance to explain from their perspective the harm that was done. In this case, there are no true victims and offenders – all sides no doubt feel that they have been harmed in this process.
But restorative justice takes us away from the concept of winners and losers in the criminal justice system, it takes us away from the concept of crime and punishment and instead attempts to ask what harms were done and how we can make everyone whole again.
This is an approach that is not only needed for the individual participants, but I think also for the community as a whole.
In the end, I believe that, while the case could have gone either way, it was a weak case.
This was also a case that was not handled particularly well by the police officers who responded to the scene.
The Davis Police made a lot of mistakes here, in my view, including the initial report which claimed that two police officers were assaulted by a crowd.
“Before the officers could act, the unmarked police vehicle was surrounded by a large hostile group and several subjects began to yell threats at the police officers in the car. One subject quickly moved to simulate he was pulling a gun on the officers. As the officers exited the car and began to identify themselves as the police, two officers were immediately physically attacked by multiple suspects and beaten on the ground,” they said.
The video that emerged showed a different picture and there are now serious questions about how the scene unfolded and whether the officers identified themselves to the crowd.
Already the Davis Police have changed their rules for how plainclothes officers approach crowd control.
To appreciate just how far this case has gone, it went from the immediate April 24 press release to a plea agreement where the charges could effectively go away a year later. That is rather remarkable.
For those who are now hoping that this all goes away – well, it really doesn’t. There are things in motion that will keep this case and issue alive.
The first is that McGregor Scott is still investigating the conduct of the officers in this case and has yet to issue his report. This is only the criminal matter and the matter as it pertains to the defendants. Just because the defendants admitted to some guilt in this matter does not necessarily exonerate the conduct of the officers.
Second, there is an ongoing community discussion about the form of police oversight. As mentioned, the city has already changed policies as it relates to plainclothes officers, but the overall system will be reviewed and perhaps re-configured, partly in response to this incident and partly as a function of the exit of the previous police auditor.
Third, there is going to be the restorative process for the officers and defendants. This will be a private process, but there may be a community process as well that could be helpful.
Fourth, we have focused on the actions of the individuals. I have grave concerns about the overall conduct of these officers in Davis. We have seen some video of clear cases of excessive force. Most individuals with complaints have been fearful of coming forward, but we have seen clear video evidence of these officers engaging in what would at least on the surface appear to be excessive force, and in some cases egregiously so.
Based on conversations with other police officers and participants in the interaction, we believe Davis would be best served if these officers went elsewhere.
We also believe that the city attorney and city manager share culpability, particularly in the initial hiring of John McGinness. The failure of the city manager to do due diligence on that hire is frankly appalling, and there need to be consequences in my view.
In the end, while it was probably unsatisfying for some that “justice was not served,” I believe that the defendants were best served by settling here. These are young kids just starting out in life. They have bright futures. Several are attending college. They did not have prior criminal records.
I think this is a point that really needs to be emphasized – these were not kids who came to Davis that day looking for trouble. I had a chance to meet them during this process and was struck by how soft-spoken and polite they really are.
Had this gone to trial, who knows how a jury would have viewed the evidence. Now they know, if they keep their noses clean, this all goes away in a year. That’s a level of certainty that a trial just could not provide.
This debate will therefore go on, and we will see what McGregor Scott has to say once his report comes final.
—David M. Greenwald reporting
Good article David, clear and with empathy. I suspect that both sides have no appetite for the RJ component and they will just try to check the box and move on but maybe I am wrong.
You could be right, although I’m a bit more hopeful that something will come of the RJ component.
What would success look like? Other than some positive right up by a mediator.
That’s a good question. One of the points made was that the disposition was participation rather than outcome based. I think success is both sides being able to explain how they were harmed by the encounter, both sides understanding why the other side acted as they did, and perhaps some sort of reconciliation, although sometimes that’s not possible.