The defendants have alleged excessive force by the police officer. At that time, they had been unable to come to trial because the younger brother had suffered debilitating head injuries.
Judge Tim Fall declared a mistrial after a juror announced they were hopelessly deadlocked on all six counts. One juror held out against conviction on all counts, the same thing that occurred in the original trial back in 2007.
As Ernesto Galvan sat in court, his entire head was scarred and cratered, he walks with a noticeable slump, and his speech is slurred. He has permanent brain and physical injuries.
The brothers have filed a federal lawsuit against the city of West Sacramento and the police officers.
Dr. Steven Gabaeff, who testified for the defense on Wednesday, described seven fractures in Ernesto’s skull including a 5/8-inch depression of the frontal plate. Dr. Gabaeff, an emergency medicine doctor by trade, described the injuries as consistent with high speed impacts.
Prosecutors had argued that the blows to Ernesto’s skull were the result of deflected blows, but Dr. Gabaeff said there was no way, given the force that was inflicted on Ernesto, that the blows were aimed anywhere other than his head.
Ernesto Galvan received the more serious charges of resisting arrest with violence and battery on a peace officer. The verdict hinged in part on whether or not the officers were lawfully performing their duties when Mr. Galvan struggled against the officer, inflicting mild injuries. The law permits individuals to defend themselves against unlawful arrest or excessive force.
According to the law:
“A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties).”
Similarly to the first trial, this one ended in an 11-1 vote to convict on five of the six counts with the other count ending at 10-2.
He expressed frustration and doubt, however, because the fellow jurors were unwilling to discuss the case, and they seemed more interested in getting on with their life. Shocking was a comment made by one of the jurors, indicating that the defendants were lucky they were not shot.
Mr. Austin had reasoned that the Galvans could have been behaving entirely in self-defense, but he would have been more apt to consider guilt if the other jurors had been willing to take the time to go through the evidence. Most of the other jurors were unwilling to discuss the reasonableness of the initial detention of Ernesto Galvan by Officer Donald Schlie, arguing only that Mr. Galvan resisted detention and arrest before the officers delivered the baton blows that did so much damage.
Resistance to an officer is legally acceptable, as self-defense, if the officer is not lawfully performing his or her duty, such as making an unlawful detention or arrest, or using excessive force. If the alleged excessive force did not occur until after resistance to a lawful arrest, then the excessive force does not make the arrest unlawful. But, although Mr. Galvan may have resisted arrest before the use of force that so injured him, the hinge pin becomes whether the detention was valid to begin with, based upon the officer’s suspicion of unlawful intoxication. Mr. Austin was not convinced that Officer Schlie had the right to detain Mr. Galvan in the first place.
Mr. Austin cited inconsistencies in officers’ accounts of the event, discrepancies in reports of wounds, conflicting opinions of expert witnesses, and poorly-taken reports (an interrogation of Fermin Galvan, while he was still in the hospital and perhaps sedated, performed by Officer Joe Villanueva through a hospital interpreter, failed to be conducted with the confirmation of a recording), and found that all added up to enough to raise reasonable doubt.
Mr. Austin thought that evidence as to the lack of controlled substances in the Galvans’ blood would have helped the other jurors to decide there was reasonable doubt, but that in itself should not be necessary, as the defendant is always presumed innocent. The high standard of proof, “beyond a reasonable doubt,” was enough to convince Mr. Austin that he could not find the defendants guilty beyond a reasonable doubt, and to the exclusion of a reasonable doubt.
Several of the jurors had simply assumed that Mr. Galvan was high, despite the fact that no evidence was provided to substantiate that point.
Closing Arguments – Prosecution
Officer Schlie, upon approaching the brothers, noticed that they were sweaty and behaving oddly. This included Ernesto repeatedly thrusting his hands into and out of his pockets. Officer Schlie did not know if he might have a weapon. Officer Schlie asked him to keep his hands out of his pockets, then tried to detain Ernesto by grabbing his wrist. As he tried to detain Ernesto, Ernesto turned and struck Schlie, and kept on punching. Schlie repeatedly tried to subdue Ernesto verbally, but Ernesto fought wildly and with unusual strength. Schlie tried his Taser, but that was also ineffective.
At this point the backup officer, Officer Farrington, arrived, but both were unable to restrain Ernesto. They used their batons multiple times. A few blows inadvertently struck Ernesto on the forehead, although they were intended for the extremities. A third officer arrived, and subdued Fermin (to the ground), inadvertently causing asphalt scrape injuries and a broken tooth.
Prosecutor Carolyn Palumbo told the jury that the injuries that the brothers suffered were the result of crimes against the police officers.
“Injury doesn’t make them less guilty,” Ms. Palumbo began. She reminded the jury not to allow bias, sympathy etc to persuade, and that their decision must be based upon the evidence.
Ms. Palumbo argued in closing that Ernesto Galvan struck Officer Schlie before the first tasering. She argued that public intoxication is a crime and they were apparently under the influence of a controlled substance. The second officer on the scene, Officer Farrington, corroborated the symptoms, by saying Ernesto had strength consistent with use of stimulants, so Schlie was allowed to detain even prior to a search for weapons, and had the right to grab Ernesto’s wrist and to use reasonable force.
In their rebuttal, the prosecutor argued that with $35 million at stake in a federal lawsuit, the Galvans have every reason to lie – this is about the money.
Closing Aruments – Defense
Officers used excessive force and then attempted to cover it up by filing charges.
“Don’t you think they had to come up with some justification for why he (Ernesto Galvan) ended up on the ground lying in a pool of blood?” Greenstein asked the jurors during his closing statement.
Although they were at the levee, in the dark, nearly 3:30am, it was not illegal to be there…they were under a streetlight, not hiding or fleeing, but walking towards Officer Schlie. Although the District Attorney described the location as a “high crime area,” the officers saw no crimes, no crimes were reported, no drugs or weapons were found in searches.
Mr. Greenstein further argued that there were inconsistencies in the officers’ accounts and where testimony does not agree, there is reasonable doubt.
He argued that Ernesto never used more than his hands as weapons against a force that was excessive and unreasonable.
During the opening statement, Ms. Palumbo claimed that an expert witness will testify that all of Ernesto’s head injuries were consistent with “glancing blows.” However, the testimony of prosecution witness Dr. Wong only suggested that he could not rule such out. Under cross-examination he even said, the chances of only glancing blows were not higher than “possible.” He also agreed that most doctors would say that the pushed in, depressed skull would be the result of direct impact.
In his closing remarks, Mr. Greenstein argued that, while Dr. Wong was honest in saying that an absolute conclusion about whether the blows that struck Ernesto were a result of direct or indirect hits was indeterminable, given the force of the hits per Dr. Gabeoff’s testimony, it is reasonable to conclude that Ernesto was directly struck in the face and head by batons from officers. He argued that there were no comparable injuries to the alleged target extremities, and it was unlikely that a blow could be deflected from lower areas in the body to the head and arrive at such force.
Moreover, if they were “not supposed to hit the head,” but did so accidentally via deflected blows, why did they keep on hitting? They should have stopped “aiming at the arms” if all blows were being deflected to the head.
The prosecutor has indicated that they will likely prosecute this case for a third time.
The Vanguard will have a more detailed analysis of the testimony in this case in the coming week.
—David M. Greenwald reporting