By David M. Greenwald
San Luis Obispo District Attorney Dan Dow was already under fire for his handling of the Tianna Arata case last summer, but that heat could be turned way up as video was presented in court in another case, which shows the driver hitting a protester as marchers blocked Highway 101 during a July protest.
Incredibly, the DA’s office had filed charges against the victim in the case, but now the attorney representing Sam Grocott showed previously unreleased police drone footage that shows the motorist is likely guilty of assaulting the protester.
Video posted by San Luis Obispo Tribune:
The new evidence, which clearly had been in the possession of the police and DA, shows something very different than prosecutors described. The video shows the BMW attempting to drive around a group of protesters on the shoulder of the freeway, a verbal exchange, and then the motorist driving straight into Grocott, forcing him onto the hood of the vehicle as it accelerates past the crowd.
Unlike previous drone footage, this footage was not released by the police. The attorney for Grocott contends that is because it contradicts the CHP’s version of events.
This is another clearly black mark against DA Dan Dow. Back in December, Judge Matthew Guerrero ruled that Dow had a clear conflict of interest, requiring him to recuse himself from the criminal case against 20-year-old protest leader Tianna Arata, as well as six other activists.
According to a report from Josh Friedman published in the Vanguard last December, “The ruling hinged on the district attorney’s wife and reelection campaign having sent a fundraising email that appeared to reference the Arata case. The email, which went out to Dow’s supporters just days after his office filed charges against Arata, stated Dow was leading the fight against the ‘wacky defund the police movement and anarchist groups.’”
In January both the DA and AG Becerra’s office appealed the ruling preventing the DA from handling the matter—another time when AG’s Becerra’s office has opposed a local judge attempting to hold local prosecutors accountable.
The peril in this case, however, could be a lot higher for DA Dow—if it is determined that his office or the CHP intentionally withheld evidence deemed exculpatory, it could be viewed as a Brady 
violation. In 2016, California made it a felony for prosecutors to intentionally withhold evidence that defendants might use to exonerate themselves.
Ironically, it was the Orange County informant scandal, a previous time where the AG defended clear misconduct by a prosecutor which inspired this one.
At the time, Assemblymember Patty Lopez told the LA Times that “the legislation was not specifically inspired by events in Orange County.” But, Lopez said, “the controversy surrounding the office of longtime Dist. Atty. Tony Rackauckas spurred the bill’s advocates and informed the debate on the state Senate floor.
“I hear so many stories about innocent people across California, and across the country, who have been wrongfully convicted,” Lopez said. “I just hope that when people think the rules don’t apply to them, they will think twice before they abuse their power.”
Ultimately an Orange County judge removed the DA’s office in the prosecution of mass murderer Scott Dekraai—the AG’s office fought that and also attempted to get an appellate court to reinstate the death penalty, but both failed.
In San Luis Obispo, the local media unloaded on Dow and his office.
In an editorial Friday, the paper noted: “Finally, we get to see police drone footage of a silver BMW heading into a knot of protesters blocking the freeway during a July 21 Black Live Matter march in San Luis Obispo. Yet it’s the belligerent driver — who reportedly regretted not having his Glock with him — who is labeled the victim by law enforcement.”
Despite the evidence now emerging, it was the protesters, not the driver who are facing criminal charges, “even though the video clearly shows the driver first tapping a bicycle with his vehicle, then heading straight into protester Sam Grocott, who winds up hanging on to the hood of the car for several seconds.”
The editorial continues: “(T)his basic fact is incontrovertible: The driver of the BMW kept going, even as protesters blocked his way,” the paper writes. “We’ve got to ask, why has it taken nearly six months to release this video — and then by [defense Attorney] Barrientos, rather than by police?”
Was this illegally withheld from the defense until now?
The paper rightly asks, “So why have police been sitting on this drone footage for months?”
In the Arata case, the question is, why prosecute the defendant? And in this case, the question is even more serious—why is Dow prosecuting the protesters rather than the perpetrator in this case?
Reasonable people can argue that protesting on a freeway is ill-advised, illegal and dangerous. No doubt. But that’s no longer the issue in this case. The driver does not have the right or authority to intentionally run over a protester and the DA and police certainly do not have the right to lie about the evidence and withhold it from the defense and public.
In a week where the California District Attorneys Association is already under scrutiny after LA DA George Gascón withdrew from their organization, pointing out their disproportionate leadership from small rural counties and lack of diversity on the board, Dan Dow sits on that board of directors.
As Assemblymember Sydney Kamlager wrote in the Appeal on February 1, “It appears that the CDAA’s real purpose is to fight every criminal legal reform that comes to California. While it lobbies behind the scenes to water down reform legislation, the association’s public face is also one of vehement opposition to any policy with the potential to reduce California’s prison population.”
Now one of their leaders is facing potential problems for malicious prosecution, Brady violations and perhaps overall dishonesty in this current case. It certainly calls for stronger action by the CDAA and the Attorney General to rein in these prosecutors.
—David M. Greenwald reporting
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Yes, reasonable people can and do argue that.
That said, if the DA and/or the police purposely withheld this evidence there should be accountability.
Are you referring to the guy (in the red circle, in the still shot of the video above) who came from behind the vehicle to inflict his own brand of justice? And was not even in path of the vehicle?
Are you pinning the blame for that on the driver?
By the way (for what it’s worth), the protestors (including the guy wielding a skateboard as a weapon) appear to be overwhelmingly white.
It’s amazing how different people can see events so differently.
I see the BMW attempting to go around people, and Mr. Grocott stepping into the path of the slow-moving vehicle. Then, coming off the vehicle (landing on his feet), with (thankfully) no apparent injury.
Is that what you describe as “assault”?
Is it a crime to purposefully block freeway traffic, and then step into the path of a moving vehicle attempting to evade the illegal blockade?
And at that point (when the driver is under attack), would he be expected to stop and turn himself in to the protestors so that they can inflict more “justice”?
What I see is the vehicle was having confrontations with the protesters – he was supposedly yelling racist stuff, though as you point out most of the protesters were white. He tried to get past the protesters, the guy in yellow slid a bit to his left, if this were basketball it would have been a judgment call – block or charge – but this isn’t basketball, it’s a several ton car against a defenseless pedestrian, and he certainly had enough time to stop before hitting the protester, at which point, the driver was committing a crime. Then you compound the DA and police failing to turn over that footage and you have a much bigger problem.
So he was yelling like “cracker” and “whitey” at the protestors ?
Ron makes a lot of good points here. If one is feeling threatened and being surrounded by a large group of anarchists aren’t their actions to try and keep themselves and their family from being harmed not to be considered?
One reason he was feeling threatened is that he was shouting epithets at people. You can’t instigate the incident and then claim self defense.
Here are some of the driver’s statements made to CHP officers:
“I’m about to go 100 miles per hour through that motherf—— retarded stupid-ass crowd.
“These lame f—-, I should have brought my Glock.”
“I’m going to fish off the goddamned pier, drink some wine, vape, like f— these f—— idiots. Not one f—— colored person in the whole goddamned mob. …”
Read more here: https://www.sanluisobispo.com/opinion/editorials/article249344800.html?ac_cid=DM390026&ac_bid=-484557043#storylink=cpy
I once came upon a picket line at a large facility at which I worked onsite as a contractor. The strikers I think got in their head that I was a scab and surrounded my pickup. I needed to get to work so I kept going, and they got in front of the truck and started pushing it, so I inched forward, then they started yelling I was trying to kill them. I was going like 1 mph.
It was spooky having people getting in front of my car and pounding on it and yelling. I just wanted to get out of there, and I can’t say I was thinking clearly. But they started it, and if I injured one of them, I’d say it’s on them, but the law may say it was on me.
I was about 25 at the time and blindly pro-union. Ever since that incident I’ve basically been leery of unions. They seemed like a scary, zombie-like mob.
This for me is a clear case of everyone having accountability for their own actions.
1. The protest leaders who led an illegal blockage of the freeway.
2. The car driver who chose to use his car as a weapon.
3. The skateboarder who as Ron pointed out decided to inflict his own version of “justice”.
4. Any members of our “justice system” who decided to withhold evidence.
Seems each should be charged and sanctioned appropriately to their own actions…no?
I’m not sure that they have leaders, but all of the protestors were breaking the law and creating a dangerous situation.
And more than that, they are deciding that they “are” the de facto law, with punishment for whoever disobeys them. That’s how these “protests” usually function. What I don’t understand is how some (non-protestors) seem “o.k.” with that, usually by citing the topic that the protestors are there for.
But certainly, the guy in the BMW could have avoided the confrontation, as well.
Ron
Who exactly are you claiming said any of this was “ok”? I believe I made it clear that all should be charged for their own involvement. Just as it would not be possible to charge every single person who walked past the barricades on 1/6/21, it would not be possible to charge everyone on the freeway that day. Thus my comment about the “leaders”.
Also from the article: “Back in December, Judge Matthew Guerrero ruled that Dow had a clear conflict of interest, requiring him to recuse himself from the criminal case against 20-year-old protest leader Tianna Arata, as well as six other activists.”
So from this account, there were identified leaders who should indeed be held accountable if they led their followers onto the freeway. Accountability for one’s own actions is necessary and should apply to all whether protesters, motorists, police, or other officials.
Sensationalize much? The driver did not intentionally run over the protester, it looks more like he bumped into him.
And why does this story have to be tied into the CDAA? It seems like the CDAA is the new target these days of the social justice warriors.
Mr. Greenwald,
I trust all is well. The referenced video that was released to the media by Mr. Grocott’s attorney had previously been provided by the District Attorney’s Office to Mr. Grocott’s attorney in the normal course of criminal discovery. That is how he had it to release in the first place. There was no secreting evidence. I respect your position as a journalist, yet encourage you to fact and source check your information when that incorrect information directly effects the reputation of another. Opinion is fine and protected speech, but false information is another thing altogether. Thank you for your consideration.
-Eric Dobroth
I appreciate the clarification – can you let us know when this video was discovered to the defense and why it was not disclosed to the public?
Mr.Greenwald,
I will certainly provide the date on which the video was produced to defense counsel once I am back in the office. In regard to the public release of trial evidence, such evidence is rarely released to the public outside of the court process. This is to assure a fair trial and due process for the parties. Public release of trial evidence runs the risk of widespread distribution (as was done here) and influence of potential jurors outside of the trial process. The California State Bar Rules of Professional Conduct, Rule 3.6 covers this area and reasonably includes not only statement by counsel that are reasonably likely to prejudice an adjudicate proceeding, but to release of evidence which may do the same. http://www.calbar.ca.gov/Portals/0/documents/rules/Rule_3.6-Exec_Summary-Redline.pdf
You didn’t seem to have a problem with the CHP providing information to the public which could influence potential jurors outside of the trial process.
Reading that code, even a layman can determine that you are misleading people with your statements. It is perfectly acceptable for attorneys to release information that is part of the public record. There is also this clause
“(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable* lawyer would believe* is required to protect a client from the substantial* undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be 2 limited to such information as is necessary to mitigate the recent adverse publicity.”
And this ABSOLUTELY applies to the circumstances of the July 21 statement by the CHP. I am so blown away by the dishonesty and tactics of the SLO County D.A.. Right now, at this very minute, you either never read that code, you’re lying through your teeth. Which is it?
Clearly withholding evidence is a serious issue.
This article does seem to raise the question: is there any legal manner for a driver to proceed through a group of protestors who are fully blocking a public road? Or do motorists simply have to accept the disruption chosen by the protestors and either remain in place until the protest is broken up, or find alternate routes?
Your comment is quite reasonable and rational so I think it merits a similar response. At 0:09 in the video, it appears to me that the motorist chose to drive around the other cars, on the shoulder, to get directly up to the protesters. At the point at which he moved on to the shoulder, there appeared to be alternate routes available. So he violated the law to begin with to put himself into the position he was in, and and at the time he did he had other options.
So I guess the real question comes down to the old maxim, do two wrongs make a right?
Assuming that’s true, I suspect that it’s not a very compelling legal argument when someone is charged with a crime. Unless jurors want to enforce their own sense of “right” and “wrong”.
I agree.. and I think that it’s entirely legitimate to charge the protesters with misdemeanors in this case. However, their actions to not legitimize those of the driver, who was clearly aggressive and sought to escalate the situation, rather than avoid a threat. And it really brings into question law enforcement’s choice to prejudice the jury pool by only releasing information to the public which supported their narrative.
Haven’t been following it closely enough, to know what they released. Nor would I know if what was released was appropriate (or perhaps even required).
Seems to me that (overall), there’s a lot of trials by blog, these days. 🙂
For what it’s worth, my opinion (based upon that video) is that the protestor in question did not commit a serious crime, and certainly not the most serious one among the protestors.
So perhaps the video will be the most important evidence, regardless of pre-trial statements.
[Moderator: just a reminder that this is your fifth comment on this thread.]
That’s your opinion but I see it differently. The driver tried to go around and avoid the protesters but they kept blocking him at his every move. He then tried to slowly move his car forward as to not hurt anyone but the protesters wouldn’t budge. At that point it was starting to get more dangerous and he had to make a break for it. We don’t know the fear that he and his other auto occupants were feeling at the time.
Yes, I must agree with KO the situation he describes is quite valid. The driver is coming down the road with no knowledge they are doing anything but driving somewhere, and no time to prep to think how you would react if there was a mob blocking the roadway. Suddenly you are trapped, you are full of fear and adrenaline. (see my situation with the union mob, above). In such situations someone might do the ‘wrong’ thing. Important to keep in mind that the person driving didn’t initiate illegal and dangerous actions that day, the protestors did.
I am for federal law that any trespass on railroad, highway, runway is a felony. Fast moving transportation corridors are nothing to mess with. Allowing the blocking of transportation and publicizing this signals to others that this is an OK form of protest. It is a felony to block a railroad, but the protestors who blocked Caltrain a few years ago were arrested but not prosecuted. One must also prosecute if one is to send the message that transportation beyond city streets is off limits.
I am not for blanket immunity, however, if a driver actually tries to kill people. “I’m gonna kill me some protestors” should not be protected by any such laws that are attempting to look out for the safety of the public.
Several state legislatures are addressing this issue by cracking down on protestors who block roadways and granting immunity to drivers who hit them:
https://apnews.com/article/race-and-ethnicity-legislature-oklahoma-city-oklahoma-legislation-238201499e0d4a960ef49b92f25dbb31