Commentary: DA Allows Police To Go Free Despite Brutal Incident

What we do know suggests something very wrong happened that night, and the people most responsible for that were not the defendants who may have to stand trial in two months for a fourth time, but rather the people that we entrust to protect us and keep us safe – police officers.  Unfortunately the DA’s Office is more concerned with protecting the financial interests of West Sacramento than they are in seeing that justice is done.  The statute of limitations has long since run on a state charge of felony assault.  And likewise a federal civil rights charge, for which the statute is five years, and which ended six months ago.

Apparently there was some interest on the part of the justice department to investigate the officers for violating the civil rights of the brothers.

“Unfortunately however, the United States Attorney  who was investigating this case wanted to wait for an outcome in the state criminal proceeding which is understandable, and during that time the statute [of limitations] ran for the filing of the federal criminal action against the officers.  Although I do know they were investigated and had there been an acquittal, there would have probably been a federal criminal prosecution of them,” Defense Attorney Anthony Palik told the Vanguard earlier this week.

We can talk about the fact that in fairness, in the first two trials, 22 of the 24 jurors had voted to convict on virtually every charge.  While true, it seems that we know so much more than we did back then.  And what we know is disturbing because it adds up to a couple of police officers lying about what really happened.

Mr. Palik told the Vanguard, “I think that the officers’ stories are clearly fabrications.  Every time we do a trial the story’s different.  I believe that a lot of their story is the result of an afterthought to explain their misconduct, but I can’t divulge any further details in that regard.  There could be possibly some new testimony coming to light at the new trial, but I cannot say what that would be.”

It is unclear how the beating of Ernesto first started.

“No one really knows and even Ernesto can’t remember because of the brain damage,” Mr. Palik told the Vanguard.  “But we do have information that what occurred that evening is not what the officers claim it was.  In other words a lot of attention is focused on whether or not Officer Schlie grabbed Ernesto’s wrist and whether he pulled away.   And there’s a story that the officers tell, that the brothers sort of voluntarily walked over to the police car after a casual greeting.”

He added almost teasingly, “At the next trial, I think you will find out that, in fact, the incident was a lot shorter than everyone believes based on the officers testimony, and that the sequence of events was not what the officers claim it was.  That’s all I can say.”

But let us look at what we do know.  Officer Schlie of the West Sacramento Police Department was driving around at about 3 am and spotted two figures near the park along the levee.  Somehow in the dark, he determined that one of the brothers was sweaty.  When he approached, he became suspicious at Ernesto Galvan’s lack of eye contact and the fact that he was said to be putting his hands in and out of his pockets.

But as Public Defender Martha Sequeira pointed out in her closing, Officer Schlie’s testimony is actually inconsistent with the belief that Mr. Ernesto Galvan had a weapon.  First, he motioned his partner to go look at the car down the street, signaling the low degree of threat he felt.

He walked alongside the brothers and tried to chat with them in a casual conversation.  If he really thought Mr. Ernesto Galvan had a weapon one might think he would be less casual, pull his weapon immediately, and order Mr. Galvan’s hands out of his pockets.  Yet he did not do that.

Throughout their testimony they argued that Mr. Galvan was under the influence of meth, yet there were no charges for being under the influence of a controlled substance.  Nor were medical reports consistent on this point.  We know that evidence was excluded showing a presumptive positive test for meth, but that evidence was excluded by the prosecutor because the hospital doctors never found any trace of the drug as far as we know.

We were told by the officers that Officer Schlie grabbed Mr. Ernesto Galvan’s wrist, he pulled away and a fight ensued. Mr. Galvan was allegedly hitting, punching and kicking Officer Schlie and Officer Farrington, who had joined in.  Mr. Galvan was tasered three times, but that did not work.  And the officers had, after the first tasering, started landing blows with their metal Winchester batons.

The problem is that Officer Schlie hardly had a scratch on him.  He had a bruise on his leg, but for the most part he was unscathed.  We saw the boots that Mr. Galvan was wearing – heavy workman boots.  He was said be thrashing around like a wildman with superhuman strength, and yet there were virtually no injuries to the officers.

The medical expert counted no less than seven blows to the head.  The officers admitted in testimony to a total of over 30 blows, aimed at extremities but repeatedly deflected to the head, in the effort to demonstrate what a formidable opponent the small-framed Mr. Galvan was. Too bad the Sacramento Bee is touchy on the photo of Ernesto Galvan, but he was beaten literally within inches of his life.  His life is now shattered.  He walks with a limp, he has a dent in the front of his head and his entire mid-face is pushed in 17 mm (5/8th inch). There were at least seven separate skull fractures indentified. He suffered brain damage and lapsed into a coma.

And yet, he was such a threat that they continued to beat him while on the ground.  Here you have a handcuffed man, and they could not move away from him if he really were resisting at that point?

When asked about the officers continuing to beat Mr. Ernesto Galvan even after he was handcuffed on the ground, Mr. Palik responded, “All I can say is it looks bad [beating Ernest Galvan while handcuffed and on the ground] and I can’t think of a reason why any police officer would do such a thing, except for reasons that I hope aren’t true.”

Again, Mr. Palik told the Vanguard that there is evidence that may emerge at the next trial that the entire incident occurred in much less time than the officers are letting on.

The medical examiner said that Mr. Galvan had an injury consistent with being hit in the arm while handcuffed, serious enough to.cause a fracture.

To me it is quite clear the official story of the officers has serious holes in it.  There are simply unexplained inconsistencies there.

Former Officer Reeder also played a role in this.  First, he confronted Fermin Galvan, and he admitted that Fermin Galvan was thirty feet from the confrontation.  He was not involved in the fight.  He was not participating.  And yet, Mr. Reeder approached him, grabbed his wrist, and when he slipped the wrist, Mr. Reeder took him to the ground.

Mr. Reeder also was involved in the confrontation with Ernesto Galvan and testified that while on the ground, Mr. Galvan was kicking him.  Unexplained is how a handcuffed man on the ground can kick an individual.  Why not back away?  But worse yet, he claimed he was kicking him with his boots.  The problem is that the other officers testified that Mr. Galvan had long since kicked off his boots.  Another unexplained inconsistency. 

Deputy District Attorney Carolyn Palumbo tried to get the officer to soften his testimony, but the damage was done.

The use of force expert we have now learned is an apologist for the police use of force.  As defense attorney John Scott put it, “I don’t know if he’s ever seen a shooting or a use of force he didn’t like.”

The transcript provided by the SF Weekly bears this out:

“What about two batons against an unarmed man with bare hands and feet? Are you saying that’s appropriate?” Mr. Palik asked.

“Yes, sir, I am,” Cameron replied.

“And you were saying that an unarmed man who is kneeling on the ground, that would be appropriate as well. Is that true?” Mr. Palik said.

“If the person was continuing to swing at the officers in an attempt to assault them, it’s perfectly appropriate,” Mr. Cameron said.

“And he’s not trying to get up from the ground. It’s still appropriate?” Mr. Palik said.

“Yes, sir,” Mr. Cameron answered.

The fact of the matter is, these officers have no business being police officers.  Officer Reeder is now a security guard.  Officer Farrington no longer works for the West Sacramento PD.  But Officer Schlie, who instigated this entire confrontation, has been promoted.

The DA’s Office appears more interested in protecting the West Sacramento Police Department from civil liability, than they are doing their jobs protecting the residents of West Sacramento and Yolo County.

Quite simply, it is my view that these officers abused their authority, they operated under the color of authority, and they engaged in what should clearly be excessive force.  Moreover, they are now lying to cover up for it.  Only they really know what went down there, but their stories do not add up.  And the holes and lies are becoming more apparent with each trial.

Ernesto Galvan is never going to live a normal life.  He needs the money from the civil suit to survive.

The Yolo taxpayers should no longer have to flip the bill to cover up for the wrongdoing of these officers.  The Yolo County DA’s Office should have prosecuted these officers, not the defendants who were victims in this case.

This case unfortunately illustrates everything that is wrong with the DA’s Office and justice in this county.  They can continue to prosecute a case where they have little to no chance of gaining a conviction.  They can continue to waste taxpayers money.  And for what?  These guys would never do prison time for their offenses anyway.  One is charged only with a misdemeanor, and the other would likely be looking at probation.

This is all about “covering” for West Sacramento.

The Vanguard talked to Professor Michael Vitiello from McGeorge Law School.  He told the Vanguard that he had never seen a case tried four times.

Professor Vitiello said in fairness that after two 11-1 votes in favor of conviction, he could see why the DA’s Office would pursue a third case, which they did.  Such votes would suggest that the case is quite strong

However, Professor Vitiello said, “Now that you have a 5-7, it seems to me that the case is not getting stronger and at some point you just say wait a second.”

“One, can we really devote these resources, and then the other thing is [that] at some point defendants are entitled to be free from the repeated efforts to convict them – the anxiety, the resources that are devoted to defending themselves in court.”

Professor Vitiello stressed that this is not a problem of double jeopardy, but it begins to take on similar implications.

“The underlying policies are similar,” he said, and “at some point people are entitled to be free from the pressures associated with repeated prosecutions.  The state has far more resources than most people.”

For him this was simply about avoiding civil litigation.  It comes down to what he calls “issue preclusion,” where a party to the litigation is effectively prevented from pursuing an avenue in civil litigation based on a criminal court ruling.

Professor Vitiello argues, “Here, one of the things that the criminal case is going to turn on, is whether the defendants initiated the confrontation.” This will then affect the viability of the Galvans’ civil case against West Sacramento and the officers.

“If they are convicted then they’re going to be precluded from saying the police instigated the violence,” he said, “That’s why where you have a fairly trivial case, a misdemeanor assault, nonetheless, it may make sense from the state’s point of view, to get a positive finding for government so they can get the preclusive effect for litigation.”

From our standpoint, maybe West Sacramento does need to pay through the nose here.  The public needs to know that those who wear the badge and carry a gun are above the board and just as accountable as the rest of us.

Mr. Ernesto Galvan will never get his life back, he will never walk without a limp or recover from the brain injuries he suffered.  The only thing now that he can gain is to be made as comfortable as possible, and sleep at night with the knowledge that those who did this have been justly punished and that this will never happen to another person.

Unfortunately, justice will never be served in this case and the DA continues to defend the indefensible.

—David M. Greenwald reporting