Man Convicted in West Sacramento Beating

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Yolo-Count-Court-Room-600 A Yolo County jury found a Sacramento man guilty in the 2009 beating of a West Sacramento man.  On Wednesday, the jury reached a verdict, convicting Michael Romero of attempted murder along with gang enhancements for a 2009 attack that occurred in West Sacramento.

According to the DA’s press release issued on Thursday, “The forty-seven-year-old victim was attacked by Romero and another gang member in the early morning hours of January 21, 2009. A Good Samaritan who was driving by the attack testified that the victim was being savagely beaten on the ground by the two men. He courageously turned his truck around and interrupted the attack. The beating left the victim comatose in the street. As a result of the attack, the victim suffered permanent physical injuries and mental disabilities.”

The press release states that “Another witness testified that minutes later she saw Romero remove one of the victim’s teeth from his hand. Romero was arrested about a month later in Sacramento County. His accomplice, Antonio Delgado, was arrested by West Sacramento Police officers about ten days after the beating. A jury convicted Delgado of attempted murder and other charges earlier this year. West Sacramento Police Officer Michael Duggins testified at trial that these brutal attacks by gang members enhance their reputations and instill fear in the community.”

District Attorney Jeff Reisig said, “It is brutal gang cases such as this that vividly demonstrate the terror that criminal street gangs bring to our communities. Thankfully, a brave citizen stopped to intervene before the victim was killed.”

According to the DA’s Office, “Sentencing is set for November 10th, 2010 before the Honorable Judge Stephen Mock. Romero faces a potential sentence of life in prison.”

A Yolo County jury had previously convicted Mr. Romero of the other counts, but hung on the attempted murder charge.

Prosecution’s Case

Supervising DA Garrett Hamilton represented the people in this case, against Yolo County Conflict Attorney Robert Spangler.

“You will learn about Nortenos and that respect is very, very important, and that fear equals respect.  They create fear by violence,” DDA Hamilton said in his opening statement.

Mr. Hamilton described this incident as “an attempted killing.” According to the prosecution, between 3 am and 3:30 am, in the early morning hours of  January 21st, 2009, Michael Romero along with Mason Antonio Delgado viciously beat Jacques Harpst, a middle-aged man of middle build, supposedly with the intention of beating him to death, and were stopped from completing the killing by a passerby who interevened and scared the attackers away. 

Mr. Hamilton claimed that the sole purpose of this crime and its viciousness was to “send a message” that the Norteno gang was present and was to be feared – to build a reputation of violence.  Mr. Hamilton also alleged that the beating elevated the status of each attacker in the eyes of the other – to build reputations between the two of them.

Jacques Harpst was brutally beaten, according to testimony from ER doctor John Richards, from the UC Davis Medical Center.  He testified that Mr Harpst had major swelling and bleeding all across his face and that he was totally unresponsive on arrival.  He also testified that numerous facial bones of Mr Harpst had been broken and that he was missing teeth. Contrary to the claim in the DA’s press release that the victim was comatose on the street, Dr. Richards stated that the victim had been combative with the paramedics en route to the hospital.

Dr. Richards was most concerned with possible injury to Mr Harpst’s brain, indicated by his unresponsiveness.  He began work to stabilize Mr Harpst.  Mr Harpst was unable to communicate for about one month after the incident.  He remained in the hospital for three months after the incident. 

Both Mr Harpst and his brother testified at the trial that Mr Harpst has suffered permanent damage and personality alteration.  He cannot smell or taste his food.  He is deaf in one ear now.  He has fainting spells and loses his balance spontaneously.  He used to be active but now sits idle and sleeps all day unless directed to do something.  He had a facility for working with computers, but now when he is put before a computer, he does not know what to do with it. 

David Eid was driving down the road after having dropped a friend off nearby when he saw what looked like a group of people “horsing around” on the roadside.  As he passed them and looked again through his rear view mirror he saw that one of them was on the ground and not moving at all, while the others were beating him severely. 

Mr. Eid made the first of his U-turns and came back past the scene on the opposite side fo the road.  The attackers saw him  approaching and they moved away momentarily, only to come back to the victim as Mr. Eid drove past them in order to make a second U-turn. 

Mr. Eid made his second U-turn, which now put him on the same side of the road as the attack, and he approached the attackers and revved his engine.  They fled and he was able to attend to the victim and call for help.  Mr. Eid said that the victim “looked like he was on the bad end of that one,” and that “he wasn’t defending himself at all.” 

An interesting point is that Mr. Eid was able to remember some of the clothing of the attackers.  He said one of them wore a light-colored sports-style jacket and that the other was wearing dark colored clothing.  He didn’t see any red colored clothing on either of them.  In fact, he testified that one of them was actually wearing a navy blue hat.  He was not able to see the faces of the attackers.

Officer Fredericko, who had happened to have contacted the Mr. Delgado and Mr. Romero at around midnight on the same night (i.e. about 3 hours prior to the incident) recalled that Mr Delgado wore a white jacket and that Mr. Romero gave an alias.

Key Witnesses

The two key witnesses in this case were Erica Raya and Vanessa Ramos.  It was Raya’s apartment from which Delgado and Romero allegedly left and returned to after the beating, though they’d gone out to get drinks before that also.  In his opening statement, the prosecutor stated that at the time of the incident and the police reports, Raya and Ramos were “very conflicted young women.”  He stated that “They have both struggled with their obligations in this case.”

Erica Raya was 20 years old.  She was friends with Delgado’s girlfriend, Vanessa Ramos.  Around 10 p.m. that night, Delgado and Romero came to her apartment, since Vanessa was already there.  She said Delgado and Romero stayed for three or four hours and then went out and came back with two gallons of Bacardi.  She stated that they came back for the final time about 20 minutes before they heard the ambulances. 

At one point, she testified that prior to the incident, she had not wanted them to go outside the apartment and had said to them “you guys are going to get me in trouble.”

The prosecution jumped on this and asked “Did you think when either of them left that they were going out to cause trouble on the streets?”  Ms. Raya replied that she thought if either of them went out that he might smoke, and so she would get in trouble with the manager. 

She had given statements to Detective Hensley, and she stated in court that some were incorrect because she was hungover.  Mr. Spangler pointed out that she had gotten her information about the incident about the robbery and the cigarettes from Ramos, and so it was hearsay.

Vanessa Ramos was really the key witness in this case, in that she was the only one to tie Mr. Romero to the crime scene.  Her testimony casts serious doubt about her account.

On the stand, she was barely comprehensible, rambling and confused. It was difficult to glean anything from her obfuscating and confusing demeanor, she never answered questions straight, she broke into confusing tangents with her answers,and failed to grasp even basic logical structures.

Her actual testimony conflicted frequently with her prior statements, earlier testimony, and often with statements within the same sentence. Her recollection of events is confused, as sometimes she claimed to have been blurry, drunk and under the influence of Vicodin, while at other times she seemed to have clear and lucid memory of details.

The critical testimony was that when they returned after drinking a considerable amount of beer and liquor, they went together to find a cigarette, over the protests of Ms. Reyes and Ms. Ramos.

Later they returned, and Mr. Romero had a significantly-injured hand with a tooth stuck in it. Ms. Ramos’ testimony was that Michael put the tooth in his pocket. Her testimony conflicted with itself multiple times per sentence, but she suggested that one or both of the defendants may or may not have told her that they had hit a guy who came out of a bar, because he acted disrespectfully when they asked for a cigarette. When asked to clarify herself, she broke into odd irrelevant rants about not wanting Mr. Delgado to have gone out and about being worried that Mr. Romero would get Mr. Delgado into trouble.

One key point that was derived at during the cross-examination was her desire to protect Mr. Delgado.

Gang Evidence

The evidence of gang involvement was almost all in the form of photographs found on a digital camera at the home of Mr. Delgado during the investigation of the incident.  We described their use in a previous article which highlighted Gang Expert Michael Duggins’ testimony.  It is noteworthy that, despite the fact that the DA’s Office claimed this was a gang attack, neither man was described as wearing red clothing which is synonymous with the Norteno gang.

DA Investigator Bruce Naliboff testified that he had transported the defendant from the jail to West Sacramento booking and for a blood draw, and had spoken to him en route about the defendant’s tattoos, that of the area code on his arms and of “RNP,” which apparently  stood for “Red Nose Pits.” 

Investigator Naliboff stated that he’d received numerous letters that had been intercepted by the jail and were supposedly to and from the defendant while he was being housed there..  He stated that all mail to and from defendants is opened – that legal mail is opened but not read.

Mr. Spangler on cross-exam pointed out that mail that is written out of the jail is not tracked from the writer’s hand to the drop box, thus anyone could write the mail and put any name on it.  He argued that there’s no proof that the defendant was the author of any of it. 

There is no system to determine who wrote the mail or even which section (pod) in the jail it came from.  Mr. Spangler, at the end of the examination of the mail, stated his objection with “I don’t believe there is sufficient evidence to authenticate the document.”  He was overruled and the documents were admitted.

The letters were examined and Naliboff was asked about them.  The letters were written in thick slang and were unspecific in most parts, just expressions of general emotions.  In various places the author asked for specific things to be sent such as “draw me a red nose pit” and “a right hand throwing up a RNP,” a reference to a hand sign that represents the letters RNP. 

The author stated that such an item “reminds me that I’m not alone and not fighting for nothing.” The author requested that the recipient delete everything from the author’s Myspace page.  Mr. Spangler objected to the addition of other letters on the grounds of hearsay – i.e. that they were not written by Michael Romero.  Judge Mock replied that “I would sustain the objection that it contains hearsay, but I’ll allow it for non-hearsay purposes.”  Mr. Spangler further objected that “its prejudicial aspect outweighs its probative value.”  Judge Mock, however, overruled him.

On cross-examination, Mr. Spangler asked Mr Naliboff to stand and read parts of the letter that had not been highlighted and had been passed over by the prosecution.  In those parts, the author spoke about the importance of education for the Red Nose Pitts.  At one point the author pointedly stated that “life is not about gangs or violence but about taking care of each other… we will see better days.” 

Mr. Spangler implied that the the prosecution was cherry-picking from the letter, thus losing context, and that they did not see fit to highlight and point out portions that showed more context and nuance.

We have already given the full account of Officer Duggins’ testimony , however, there are two key points.

First, Officer Duggins had no direct knowledge of the Red Nose Pits gang of which Mr. Delgado was a member.  And second, Officer Duggins made key factual errors.

Officer Duggins acknowledged in the voir dire (which in this case was a preliminary examination of an expert witness to determine his qualifications and suitability to serve as an expert) that he had limited experience with the Red Nose Pits.  Prior to the beating, he acknowledged he had never dicussed with any Red Nose Pits gang member, the purpose of the gang or  what it meant to be in the gang.  He knew that some, including co-defendent Mason Delgado, had moved from the Citrus Heights/ North Highlands area to West Sacramento.  But he never really spoken to them about their aims or purposes.

After Officer Duggins mentioned that he had never spoken to the Red Nose Pits about their core principles, defense attorney Spangler objected to his being an expert on the Red Nose Pits in particular.

Judge Mock, however, responded, “I would find that he is an expert in the area of criminal street gangs and is able to give opinion testimony on the Norteno criminal street gang in general, and the Red Nose Pits in particular.”

A good portion of the basis for establishment in the gang has to do with a number of photos that were obtained from a camera and thumb drive from Mr. Delgado’s residence following the beating incident.

Officer Duggins argued that the photos show a progression, where Mr. Delgado is almost acting as an ambassador from the Red Nose Pits to the West Sacramento Nortenos, upon his move from Citrus Heights to West Sacramento.

At first, Mr. Delgado is seen with his Red Nose Pits associates from Citrus Heights, but gradually more and more with gang members from West Sacramento.  The most recent photos show him exclusively with West Sacramento alleged gang members.  The officer argued this shows Delgado’s allegiance to West Sacramento, and belies the fact that he cannot just come into the community without forming some sort of alliance with them.

Officer Duggins stated that, in his opinion, “Mr Delgado on that day was an active participant of the Norteno criminal street gang.”

He also stated that he had never met defendant Michael Romero prior to this incident.  However, based primarily on photos, Mr. Romero is an active gang member, in his opinion.  In particular, he noted the booking photos from Christmas Eve, 2008, where Mr. Romero had spray painted on his jeans “XIV 4 life” in red spray paint, and also showed dots on his hand indicating 1 and 4.

Case Analysis

The defense presented no witnesses or evidence in this case.  Nor did they make an opening statement.

Garrett Hamilton, the prosecutor in this case, argued, “This was a beating death.  This was a murder interrupted.”  “When you deliver a battering ram to the head of Mr Harpst… you’re making a big statement to the Norteno community – it’s not just a cigarette robbery.”

He further argued that while no one ever heard any statements about intentions to kill the victim, the injuries were directed not at arms and legs but at a vital part of the body – the head and face.

Moreover, he argued that even if it was not premeditated prior to being interrupted, the resumption of the act argues premeditation and the intention to kill.

That said, this was not an open and shut case, and the defense perhaps did not put on near enough evidence to counter the rambling statements of Ms. Ramos.

There are several points that need to be made. First, Ms. Ramos was the only witness in this case who was able to place Mr. Romero at the scene, and even then it was tangentially done.

Mr. Spangler, in his closing, would argue that it is not even certain that Mr. Romero came back to the apartment that night, let alone that he was seen with a tooth in his hand.

Ms. Ramos claimed to have seen the tooth, but there was no scar where she said it was – between the knuckles of the middle and ring finger on the right hand.  Mr. Romero, at the trial, did have a scar on his other hand, but in a portion that would not likely make contact in a punch, and certainly would not produce enough force to lodge a tooth.

Mr. Hamilton, on his rebuttal closing, argued that Ms. Ramos could not have known that the victim was missing teeth if she had not seen the tooth.  He also argued that if there were someone that could have put Mr. Romero in a different location that night, Mr. Spangler would have presented it in trial.

Of course, both of these points shift the burden, and Mr. Spangler is not required to prove negatives, which are difficult to prove any way.  The prosecution is required to prove its case beyond a reasonable doubt, and this hinges on a single witness, who has a vested interest in telling her story, and who utterly lacked credibility. Her testimony not only contradicted itself, but was also contradicted by physical evidence.

Ms. Ramos’ confused testimony, along with the lack of any corroboration, likely led to the previous hung jury, but for whatever reason this time, the jury came back with a guilty verdict.

The gang enhancement is also problematic.  According to Penal Code 186.22(B)(1), in order to enhance for criminal street activity, one must be committing the act in furtherance of a gang.  Even if the predicate act occurred, it seems more likely that the two guys got drunk, were looking for cigarettes, and then beat the guy up.  They were not even wearing gang colors.

The letter was selectively used to tie the defendant to other gang members outside of prison.

Mr. Romero faces potential life in prison. Mr. Delgado previously was sentenced to 28 years 4 months in prison.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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26 thoughts on “Man Convicted in West Sacramento Beating”

  1. David M. Greenwald

    He testified, but I don’t believe he identified either man. I’ll have to double-check. I don’t believe so which is why Mr. Spangler argued only Ramos could tie him to the scene.

  2. E Roberts Musser

    dmg: “Mr. Hamilton, on his rebuttal closing, argued that Ms. Ramos could not have known that the victim was missing teeth if she had not seen the tooth. He also argued that if there were someone that could have put Mr. Romero in a different location that night, Mr. Spangler would have presented it in trial.

    Of course, both of these points shift the burden, and Mr. Spangler is not required to prove negatives, which are difficult to prove any way. The prosecution is required to prove its case beyond a reasonable doubt, and this hinges on a single witness, who has a vested interest in telling her story, and who utterly lacked credibility. Her testimony not only contradicted itself, but was also contradicted by physical evidence.”

    No, it doesn’t necessarily shift the burden. All that is being said here is that since the defendant failed to provide an alibi that would have put him elsewhere at the time of the crime, the jury is free to believe the evidence presented that the defendant was at the crime scene, especially bc the evidence that he was at the crime scene had gone unrefuted. There was no evidence introduced to make the evidence presented that the defendant was at the crime scene less believable. This is a very, very tricky and nuanced issue (this issue came up in civil trial I was involved with).

    I would also note that the general practice in trials is to allow evidence in whenever possible (if it does not violate the rules of evidence), if not too prejudicial. I get why the judge allowed the expert gang testimony in (that would have been discretionary, and the judge erred on the side of allowing it), but I’m a bit preplexed about the purported letter. Was it a letter sent through the mail system, or internally as between prisoners (if that is even allowed, which I would assume is not)? Was it directed specifically to the defendant? I wasn’t clear on that point. And since it could not be authenticated as to who it came from, I can’t quite see how it was allowed in as non-hearsay evidence. On what grounds? All I can think of is that the defendant had “gang paraphenalia” (a letter with gang references) in his possession?

    Also, I wonder if the jury was not as troubled by the inconsistencies in Ms. Ramos testimony bc they believed she was being purposely obtuse trying to protect a friend (the defendant)?

    Very interesting article…

  3. lostins

    Interesting that you chose to leave out the CC video evidence of all parties mentioned earlier that night. And showing 2 people matching the description of the parties leaving the scene of the crime. And that the entire timeline of Ms. Ramos’ original police station interview was corroborated using this video and the contact by the West Sac PD.
    That CC video evidence was not present in the previous trial, nor were other key pieces of evidence.

  4. Roger Rabbit

    This gang stuff is poison to justice. Repeating words like violence, death, threats, gang members, furtherance of the gang, putting in time, putting in crime, mystery hierarchy, Lts, gang signs, tattoos, gang clothing, secret signs and of this is very intriguing makes for good crimes stories. Unfortunately, this makes people that do not know what is really going on believe things since they think the DA’s and gang experts must know what they are talking about it, so they base their decision on fears or the unknown.

    Crimes should be prosecuted, but morphing the law and rules with so called experts just to convince people to convict with mystery and fiction is just wrong. Where does it stop? Is their a politician expert out there that testifies on Political corruption? NO. Is there a Government corruption expert that helps get convictions on Government corruption crimes? Is there a wasteful government spending expert?

    I think the intent of expert opinion was designed to help educate the jury not to create fear and speculation just to help the DA get convictions. It the DA was honest and above board he would not need to “do what it takes” just to get convictions. A crime is a crime. Make the case with the evidence or let the system work. When you get people like Reisig, who think they are smarter and they can justify the means with the ends, that is when the system stops working for the people and only works for him. Very bad precedence.

  5. lostins

    [quote]The gang enhancement is also problematic. According to Penal Code 186.22(B)(1), in order to enhance for criminal street activity, one must be committing the act in furtherance of a gang. Even if the predicate act occurred, it seems more likely that the two guys got drunk, were looking for cigarettes, and then beat the guy up. They were not even wearing gang colors.[/quote]
    I just have to comment further… as to exactly how insulting this statement is to the 12/13 individuals who weighed the evidence in this case. They obviously knew nothing about gangs, were too dumb to read the actual law, and are just insane to come to this conclusion.
    But as you simply read the court transcript, and were not present in the courtroom for more than a few hours, you must know something that they didn’t know.
    Any just in case you wanted to check out that myspace page in question? Here it is: [url]http://www.myspace.com/ltromero14[/url]

  6. Iyah

    Thanks for the article David. My heart goes out to Mr. Harpst. I hope he is able to overcome his injuries and move beyond this.

    It is bothersome that the only person able to put Mr. Romero at the scene gave very conflicted testimony and she herself wasn’t there. I hope they have the right people in this case, unlike the murder case you covered earlier. Otherwise, the people who did it will still be out there.

    ERM: “I would also note that the general practice in trials is to allow evidence in whenever possible (if it does not violate the rules of evidence), if not too prejudicial.” I would have to disagree with you. There are many reasons judges do not allow evidence into trial, making a generality confuses people. Each case is unique, as is each judge.

  7. valerie

    My heart goes out to the victim in this senseless crime and I hope he has a full and speedy recovery. There is just something that does not make sense to me though. Officer Duggins testifies based on his so called EXPERT testimony that the defendants have some sort of an allegiance to West Sacramento(as known as the Broderick boys)gang members. But, if you go into caselaw.findlaw.com on page 15 to the bottom portion you will clearly see that based on Officer Villanueva’s so called EXPERT testimony that he states “Broderick boys gang members use assaults to maintain control of their turf. They will beat,stab or shoot rival gang members or members of the community who disrespect them or cross their path. As to rivals, it keeps them from invading the Broderick boys turf”. Are the defendants not put in a category of a rival gang? They are from a different gang that of the so called Broderick boys. So, what I am really getting to is that their are two different views from two supposed experts. And if they are such experts, they would know that in the real gang world that another gang does not go into a rivals neighborhood. NO EXCEPTIONS!!! I think this proves that they both have been watching too many prison movies and wants to portray some make up Broderick boys gang to get an injunction. The weird thing is that I have lived in Broderick for over 40 years and the first time I ever heard “Broderick boys” was in 2005 when they put the first injunction in place. Their is obviously two so called experts with two different views about a REAL gang member.

  8. jimt

    Good riddance to these viscous scum.
    I’ve got a bit of old testament in me; and would not object to the same beating being applied to these guys as they dealt out.
    They are getting off easy; in the past and in other societies around the world viscous degenerates like these would be executed and streets would be safer.

    To the commenters who hope the victim makes a speedy recovery–this guy will likely never recover completely from this. He is likely crippled physically, mentally, and psychologically for life. It affects not only him, but his family and those who take care of him, time and money, likely for most of the rest of his life.

  9. David M. Greenwald

    A few responses:

    [quote]Interesting that you chose to leave out the CC video evidence of all parties mentioned earlier that night. [/quote]

    You’re right I did not mention the video of the individuals at a convenience store buying cigarettes. The prosecutor made the following comment, “Talk about a gangster walk. If you look at the way he’s walking around in that video, he looks like he’s just looking for that.” That somehow being a reference to the beating or violence.

    [quote]But as you simply read the court transcript, and were not present in the courtroom for more than a few hours, you must know something that they didn’t know. [/quote]

    I thought based on your comment you were a DA until I read that. A DA would know that the court transcript is not available, certainly not at this time, and when it is available, it takes a few months to turn into English from whatever symbolic language the court reporter uses at a cost of thousands of dollars.

    You would also know that while I was not personally in the courtroom, I had my assistants there for the entire trial. And ironically enough, I was there for the portion where Mr. Duggins testified about the photos and myspace. To me none of that probes this was a 186.22 gang crime.

    I think it is more likely than not that they committed this crime, nevertheless the witness Ramos was a huge problem even if the timeline matched up, as she did not witness the attack and her recollection of the tooth is problematic given the location of the scar and trajectory of it on Mr. Romero’s hand is not consistent with a punch, and the scar was such that the tooth would have had to have entered strait in on the back of his hand, a blow which would have had almost zero power behind it, certainly insufficient to dislodge a tooth and embed it.

  10. kathryndruliner

    My Artz case if finished. However I find this blog so interesting I will follow it as time allows.
    First: Expert testimony: the rule is Evidence Code 803: anyone who knows more than the average Joe can testify. It is the easiest burden to reach. I had a case in Federal Court where my client (acquitted) was not a gang member. I cross examined the cop and made that point, that he had not be validated. Everyone looked at me, like was does that mean. Very, very smart judge, but I guess that issue doesn’t come up much in Federal court. So guess what. The u.s. atty looked it up and the cop went out and validated him. All it took was finding out that he had common friend with whom he associated and they had another group who they did not like. He had no tatoos, no gang affiliation, but 186.22 doesn’t matter. As a catholic schoolgirl with a uniform (same clothing as others) who had a group of friends who did not like a clique of other kids, we would have been validated under the gang statute. Hmmmmm. Could be abused.

  11. kathryndruliner

    ERM: You wanted examples of where you come off as expert on the law. Maybe this is one. Civil and criminal are different. Civil is preponderance and criminal is beyond a reasonable doubt. Civil is for money; criminal is for liberty. Ev. Code 352 by which Judges exercise discretion to keep out evidence has many, many factors, only one of which is undue consumption of time. How about all of the others. Also, it is a balancing test, what about the other side? Anyone who purports to inform the public has a responsbility to be fair and accurate. As Lincoln said “It is better to remain silent and be thought a fool than to open one’s mouth and remove all doubt”. I try, but too often fail, to remember this.

  12. E Roberts Musser

    lyah: “ERM: “I would also note that the general practice in trials is to allow evidence in whenever possible (if it does not violate the rules of evidence), if not too prejudicial.” I would have to disagree with you. There are many reasons judges do not allow evidence into trial, making a generality confuses people. Each case is unique, as is each judge.”

    From the Barbri Bar Review: “Generally, relevant evidence is admissable if it is competent.”

    From Law of Evidence by Lilly: “”Relevant” evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be w/o the evidence.”

    Now notice how carefully I parsed what I said. “The general practice in trials is to allow evidence in whenever possible (IF IT DOES NOT VIOLATE THE RULES OF EVIDENCE) IF NOT TOO PREJUDICIAL.” There are list of rules that keep evidence out for one reason or another. But it is very discretionary on the part of the judge (which I also mentioned), as s/he has to do the balancing to determine if the evidence is relevant, and whether it should be excluded under the rules of evidence as unreliable, overly prejudicial, too repetitive and time consuming, etc.

    Now that was said in the context of allowing Officer Duggins to testify as a “gang expert”. The judge had a lot of discretion here, since the definition of what constitutes an expert is given wide latitude (which I noted in a previous post). In consequence of that latitude, the judge allowed the testimony in.

    You are absolutely correct when you note that the rules of evidence are very confusing to lay people. Quite frankly they are confusing to attorneys at times. Part of the problem is the rules are not hard and fast. How do you determine if something is “more probative than not”? It is a balancing act. The judge has to decide whether the evidence to be introduced would help the jury better understand the case. Is it repetitive and unnecessary? Is it overly prejudicial such as too gory to view and would cause unfair revulsion of the defendant, etc? Now imagine having to go through this analysis for every piece of evidence!

    And there are other very, very tricky rules of evidence besides relevancy. The hearsay rule is one of the most complicated I think. It can involve the written or spoken word, and has a number of nuanced exceptions. The issue of the letter in the above case is an example of that. I’m an attorney, and I can’t quite figure out how the letter was admitted as non-hearsay. I made a guess as to why, but no one has answered my question if they know exactly the judge’s reasoning here.

    Since so much is at stake in understanding the legal system, e.g. one’s freedom, life savings in a divorce case, basic law really ought to be taught in our schools. Ignorance of the law is no excuse, but the public is never educated about it, and all too often gets educated about it the hard way and after it is too late.

  13. E Roberts Musser

    kd: “ERM: You wanted examples of where you come off as expert on the law. Maybe this is one. Civil and criminal are different. Civil is preponderance and criminal is beyond a reasonable doubt. Civil is for money; criminal is for liberty.”

    The laws of evidence apply to both civil and criminal trials, tho there are differences. In the matter I was referring to (shift of burden/proof of negatives), it was a 5th amendment issue where the person could have been brought up on criminal charges, so it did involve criminal law in a civil trial.

    kd: “Ev. Code 352 by which Judges exercise discretion to keep out evidence has many, many factors, only one of which is undue consumption of time. How about all of the others. Also, it is a balancing test, what about the other side?”

    See above discussion with lyah.

    kd: “Anyone who purports to inform the public has a responsbility to be fair and accurate.”

    Anyone who blogs has a responsibility to refrain from personal attacks. Specifically where have I been “unfair” and “inaccurate”? And by the way, the nature of a blog is to express OPINION, and people are free to agree and disagree. We correct each other from time to time but refrain from personal attacks, which keeps the conversation lively and informative. Don Shor is the gatekeeper for determining whether something is a personal attack, and errs on the side of allowing it – and he has come under fire for some of his decisions.

  14. E Roberts Musser

    To kathryrndruliner:
    Dear Yahoo!:
    Who said, “Better to keep your mouth closed and be thought a fool than to open it and remove all doubt”?
    John
    Greenville, South Carolina

    From yahoo.com:
    This was a tougher nut to crack than we originally thought. Not only could we not find a definite answer to your question, we couldn’t even confirm the exact wording of the quote.
    Searches on “better to keep your mouth closed” and “better to remain silent” (using the quotation marks in both cases) turned up numerous web pages, all offering different versions of the phrase. Some sources quoted the saying as “It’s far better…”, some substituted the words “stupid,” “ignorant,” or “simpleton” for the word “fool,” and still others twisted the saying into an almost unrecognizable form.

    A page titled Mark Twain and the Mutating Quote attributed at least four variations of the same phrase to the eminently quotable Twain, explaining that it was a case of “split personality” that accounted for the variations, rather than a rash of misquotes.

    Other pages suggested a number of other authors for the saying, including: Abraham Lincoln, George Eliot, Groucho Marx, Albert Einstein, and a mysterious figure named Silvan Engel.

    In an attempt to solve this proverbial puzzle, we paid a visit to Bartleby.com, home to the online version of Familiar Quotations. Unfortunately, after searching on a number of possible keywords and potential authors, we couldn’t find a single reference to this quote.

    All the confusion and disagreement surrounding both the author and the wording of this saying led us to suspect that it may be a simple maxim, not attributable to any single person — which is not to question its wisdom.

  15. Roger Rabbit

    [quote]That CC video evidence was not present in the previous trial, nor were other key pieces of evidence. [/quote]

    If the evidence was not used then it must have been deemed tainted or seized illegally, could not be corroborated, could not be authenticated or suppressed by the judge for police misconduct. So surely you are not going to use the old DA lawyer trick of, we know the guy is guilty we just could not prove it???

    If the DA did their job the evidence would be used unless they got caught hiding, concealing, obtaining it in “less than ethical” manners, I hope you are not finally agreeing the DA is dirty and got caught in his sneaky acts and now he wants to blame the courts or cops or jury members for not getting a guilty verdict or either not convicting the first time???

    lol, tell me it isn’t so?

  16. Roger Rabbit

    [quote]Any just in case you wanted to check out that myspace page in question? Here it is: http://www.myspace.com/ltromero14%5B/quote%5D

    So there is a scary gang page on Myspace, is it illegal? Is it a crime? Just because someone makes a page and claims things, does everyone have to believe it’s true. With that logic everything on myspace or the internet true. So, if I make a page about our unethical DA and put it on myspace, it MUST be true? If that is the big key evidence the DA is using to prove a gang is real, a myspace page? Geezzzz…. I hope the DA’s office is not using Wikipedia legal page to do their research, no wonder they are screwing up so many cases.

  17. lostins

    Nope. Sorry to disappoint. The issue was with the inability to play the video evidence due to a proprietary issue with the software. The store owner helped transfer the video to WMA format for viewing during the week of the trial. There was testimony at both trials as to what was seen on the video.

    Out of curiosity, why would the defense admit that the defendant wouldn’t testify “because he was a gang member and would suffer either on the streets or in jail” if he was just a nice kid with tattoos? Or why would the defendants reaction be to hold his head up high and smile as the 3-5th counts were read? This blog left out most of the 5 days of testimony, so it’s not just opinionated but giving you just what you need to come to the same foregone conclusion.

  18. David M. Greenwald

    “This blog left out most of the 5 days of testimony,”

    Interesting indictment. This is a 3000 word article as it is, it is not a trial transcript. I tried to hit on the main points to the best of my ability. I missed some things, for instance my intern told me I forgot to mention the fact that they never did a DNA test of the blood that the CSI found on the road.

    “Out of curiosity, why would the defense admit that the defendant wouldn’t testify “because he was a gang member and would suffer either on the streets or in jail” if he was just a nice kid with tattoos?”

    I have very rarely seen a defendant testify, though I think most of the time it is not to the advantage of the defense.

  19. E Roberts Musser

    dmg: “Interesting indictment. This is a 3000 word article as it is, it is not a trial transcript. I tried to hit on the main points to the best of my ability. I missed some things, for instance my intern told me I forgot to mention the fact that they never did a DNA test of the blood that the CSI found on the road.”

    It would be useless to do a DNA test on the road blood since it would be the victim’s, not the perp’s if the perp showed no sign of damage.

  20. DarkAges

    To lostins: Wow! So you think that it is okay to put a person away for DECADES based on them smiling when counts 3 to 5 were read out? Is it okay to send a person away for decades based on some anecdotal claim of the defense attorney saying he’s a gang member?

    Is that the standard and the level of safety we should use when we put people away for decades? You seem to have not concept of the standards of proof and why we have them. It’s almost not worth responding to you.

    But you know, you’re in good company because even the prosecutor in this case made ridiculous suggestions to the jury. He explained during his closing argument rebuttal (meaning that the defense cannot speak after him to refute it,) that though the defense has to prove nothing in this case and the prosecution has to prove everything, that the non-evidence of the defendant being elsewhere meant that he must have been present at the scene of the crime. But I don’t expect that you’ll understand what that means or why it is wrong.

    You wrote about Ms. Ramos and how her statement to the police was supposedly corroborated but the security camera video. Well, part of it was. What more disturbing about her is that one of the first questions she asked when she was questioned by police was what would happen if she blamed the entire thing on Michael Romero. Also, it’s troubling that there’s no sign where she said a TOOTH was lodged into Romero’s fist that there was ever an injury there. In fact there was an injury to the other hand in a location inconsistent with a punch.

    To E Roberts Musser: About testing the blood found on the ground, it seems amazing to me that you’d say it is useless to test it. Physical evidence is gold. It is arguably the most compelling of all evidence. Wouldn’t the wise thing be to test all and every bit of physical evidence and see what you could conclude based on it rather that decided that you know what happened and dismiss testing evidence?

    Are you truly a legal professional?

    The CSI testified that there was very little evidence found at the scene altogether so I’d think they would want to test every bit of it. For instance, there were numerous coins found there and they were not tested for fingerprints, though the CSI admitted they are a good medium for fingerprints. An empty cigarette pack found at the scene was tested but yielded no prints. It seems odd to me that they test some things and not others. How can you know ahead of time what will lead where? It could refute what a witness claims.

    To jimt: Mr. Old Testament, you sound like one of those people to whom if the the Old Testament “law” was applied, would possibly get beaten up more than most. Are you also a “proud American” who knows next to nothing about our Constitution, where it came from, and why our nation is built around it?

  21. jimt

    DarkAges,

    On the contrary, I have never initiated violent behavour in my adult life; so the old ‘eye for eye” rule would leave me intact.
    I suspect our disagreements are not around constitutional issues; but the weight of evidence and what defines appropriate levels of punishment.

    Are you one of those who regards humans on the same level as other animals; with environment solely responsible for behavour, with little role for free will, personal responsibility, etc? What kind of a civilization do you think that kind of an attitude engenders–might it have something to do with our possible descent toward what may be another ‘dark age’ with zookeepers (feudal lords, now corporate and financial barons who buy up and pull the strings on our politicial ‘representatives’ and make the rules behind the scenes) and the critters (serfs, now workers descending back toward serfhood)?

    I’m proud not so much about being an American, as being someone who upholds civilized norms.
    Civilized norms are not compatable with lenient attitudes toward criminal activity, particularly violent criminal activity; you’ll notice in a reading of history that declines of civilizations are associated with increasing prevalence of and leniency toward criminal behavour (Rome is a good example).
    If you are ashamed to be an American, why not emigrate?

  22. E Roberts Musser

    Dark Ages: “About testing the blood found on the ground, it seems amazing to me that you’d say it is useless to test it. Physical evidence is gold. It is arguably the most compelling of all evidence. Wouldn’t the wise thing be to test all and every bit of physical evidence and see what you could conclude based on it rather that decided that you know what happened and dismiss testing evidence?”

    If the defendant had no defensive wounds, the blood would be that of the victim. Why would it be necessary to run a DNA test on the victim’s blood? In addition, if there were a tiny bit of the defendant’s blood amongst that of the victim, it would be virtually impossible to find I would think if there is a pool of blood. Like finding a needle in a haystack. I’m not a blood analysis expert, but I’m not seeing the logic of running a DNA test on this pool of blood that was clearly that of the victim.

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