In a statement released from the DA’s Office late on Tuesday afternoon, the Chief Deputy District Attorney backed away from a previous statement that indicated that the DA’s Office would seek a fourth trial.
“We conducted an analysis of all of the evidence presented in each of the cases, reviewed conversations and correspondence with jurors from all three cases, and examined whether any additional evidence or approaches to the case would result in a guilty verdict,” it continued.
The statement added, “We determined there is sufficient evidence to establish proof of each defendant’s guilt beyond a reasonable doubt; that 27 of the 36 jurors who have examined the evidence have agreed with us that there is proof beyond a reasonable doubt as to most counts; and that the officers acted within the confines of permissible use of force based on the circumstances and the defendants’ actions.”
However, ultimately they were convinced that there was a decreasing likelihood of obtaining a unanimous verdict of 12 members of the community in this matter.
“Therefore, it is our intent to seek a dismissal of all charges and to not proceed to a fourth trial,” the statement concluded.
Defense Attorney Anthony Palik issued a statement following the decision.
“We are very pleased that the District Attorney of Yolo County, Mr. Jeffery Reisig, has chosen to do the right thing and dismiss a case that should never have been brought in the first place,” said Mr. Palik who represented Ernesto Galvan in the first and third trials. “We are very pleased that the District Attorney finally chose to scrutinize the facts alleged by the police officers and to do the right thing.”
Public Defender Martha Sequeira, whose client Fermin Galvan was acquitted of one charge, and the jury hung 11-1 in favor of acquittal on the second charge of delaying a police officer, declined comment last night.
“It is incumbent upon all prosecuting attorneys to maintain a quasi-judicial role in such matters,” Mr. Palik continued. “They are not ordinary attorneys and they have a clear responsibility to the public to act with due diligence in ascertaining all the facts and verifying their consistency.”
Mr. Palik said, “I, personally, was very concerned during the third trial when one of the police officers claimed Mr. Ernesto Galvan was still wearing his boots at the time he was in restraints, and that being kicked by Mr. Galvan with his boots was the only way that officer could have torn his trousers during that incident.”
He continued, “This was especially concerning since the three officers who were actually involved in the altercation claimed steadfastly, through three trials, that Ernesto had kicked off his boots and took a barefoot ‘fighting stance’ prior to being subdued by the officers’ batons.”
Mr. Palik once again alluded to the fact that there was additional evidence that would have been introduced in the fourth trial.
He said, “We have our own theory as to what actually occurred, but that is a matter of attorney-client privilege and I am not at liberty to discuss it due to the pending civil lawsuit.”
According to the DA’s Office’s version of events, on June 14, 2005, at approximately 3:33am, Officer Schlie of the West Sacramento Police Department noticed a car parked on Riverbank Road in West Sacramento.
The release continued, describing that as Officer Schlie approached Riverbank Road, he noticed two men standing in the road. Officer Schlie exited his patrol car and contacted the two subjects, later identified as Ernesto and Fermin Galvan.
Upon contacting the two men, Officer Schlie noticed Ernesto Galvan was sweating profusely, was fidgety, and would not look him in the eyes. Officer Schlie suspected that Ernesto Galvan was under the influence of a controlled substance and attempted to detain him to conduct a further evaluation.
Ernesto Galvan failed to comply with his requests and Officer Schlie grabbed him by the wrist.
Ernesto Galvan pulled away, swung around and struck Officer Schlie in the chin. Galvan fought Officer Schlie and another officer for nearly four minutes. Officers were unable to stop the onslaught of kicks and punches from Ernesto Galvan. During this struggle, the officers attempted to gain control and compliance from Ernesto by verbal commands, take-down techniques, the Taser and the use of batons.
The DA’s version continues, stating that it was not until the officers used their batons that Ernesto Galvan stopped fighting.
In our view, evidence that came out during the third trial, as well as the second trial, clearly contradicts this reading of events. Ultimately, we agree with the DA that this case was not winnable for them. However, we differ in that we believe that the officer’s stories were becoming more and more contradictory as time went on.
Officer Schlie’s contention was that Ernesto Galvan appeared under the influence of a controlled substance and also he was putting his hands in and out of his pockets.
To back up the contention of under the influence of a controlled substance, the officer stated that Ernesto Galvan was sweating a lot on a night that was not particularly hot and that he wouldn’t make eye contact. However, none of the symptoms that he mentioned are official symptoms that trained officers would be looking for, according to earlier testimony.
Ms. Sequeira pointed out that he was never charged with being under the influence, which is a crime and would have anchored the resisting arrest charge. Deputy DA Carolyn Palumbo tried to explain away the lack of a charge, arguing that they did not have time to administer a blood test. But the hospital certainly would have, particularly in the course of doing surgery. What testing was done in the hospital was inconclusive and was deemed of no consequence to the immediate surgery, and was, in court proceedings, excluded from evidence.
Moreover, the argument about his hands in his pockets was not backed up by other facts. Officer Schlie pointed his partner to checking out the parked car down the road rather than asking for assistance with a possibly-armed man. He never drew his weapon, and there was inconsistency about whether he clearly ordered Mr. Galvan’s hands to be shown. Instead he walked next to him, almost casually. In short, Ms. Sequeira was able to show to the jury that Officer Schlie’s actions were inconsistent for dealing with a subject he thought reasonably could be armed.
There were other problems with the officers’ stories, including the fact that Mr. Galvan was beaten so badly he lapsed into a coma and yet they argued he continued to resist. There was the testimony from Officer Reeder that Ernesto tried to kick him with his shoes when he was on the ground, except that the other officers said he had kicked off his shoes almost from the start.
There is also the problem that the injuries sustained by the officers, which include some pretty superficial cuts and a single bruise, are not consistent with an out-of-control man kicking and punching officers repeatedly.
We also have to question the reasonableness of the use of force.
During his closing remarks, Mr. Palik cited testimony from the defense’s one witness, expert Dr. Steven Gabaeff, which suggested that Ernesto’s minor injuries to his extremities (mainly arms and hands) were more consistent with being handcuffed, and that the extreme injuries to his skull could reflect lack of any defensive movements by his arms.
Moreover, there was the disturbing testimony from use of force expert Don Cameron, who is apparently very notorious for supporting virtually any use of force.
Mr. Palik indicated that a key moment occurred during Martha Sequeira’s cross-examination of Mr. Cameron.
“The best part was when she asked him whether he’d be able to testify against a police officer, because doing so would mean he wouldn’t get business for his training classes,” Mr. Palik told the SF Weekly. “I don’t think he had an answer for that.”
Apparently the Weekly knows Mr. Cameron quite well, reporting in February that the San Francisco City Attorney’s Office had spent over $300,000 paying Mr. Cameron to be an expert witness in 114 cases.
“A deputy city attorney said she and her colleagues rely on Cameron because of the soundness of his expertise,” the paper reported.
On the other hand, defense attorney John Scott had the classic quote, “I don’t know if he’s ever seen a shooting or a use of force he didn’t like.”
The SF Weekley had a great exchange between Mr. Palik and Mr. Cameron from a previous trial:
“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.
Unfortunately, Don Cameron trains quite a few officers on the use of force, an appalling fact given his almost unfettered support of all uses of force.
With the conclusion of the criminal phase of this trial, now the civil suit can move forward against the officers. The DA’s Office has already squandered any possibility of criminal prosecution of the officers, either in state court or federal court, as the statute of limitations has now run.
The Vanguard is still working towards a story on the now-defunct federal investigation into the use of force and civil rights violations by Officers Schlie and Farrington against the Galvan brothers.
—David M. Greenwald reporting