Reisig Reverses Course, Will Not Seek Fourth Trial of Galvan Brothers

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reisig-2009After five years and three trials it is finally over for Ernesto and Fermin Galvan.  They paid a high price, but will now be able to resume their lives without the criminal charges hanging over them from the 2005 incident that has left Ernesto Galvan with permanently disfiguring and brain-damaging injuries.

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.

“After the third trial, the Yolo County District Attorney’s Office conducted a careful, thorough, and deliberate review of the case and the three jury trials,” the statement read.

“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.

Ernesto Galvan was charged with felony resisting arrest and obstructing Officers Schlie and Farrington by threats and violence, and misdemeanor battery on the same two police officers.  Fermin Galvan was charged with misdemeanor resisting arrest and obstruction by threats and violence against Officer Reeder, and misdemeanor obstructing/delaying of Officer Schlie, who was struggling with his brother.

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

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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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21 thoughts on “Reisig Reverses Course, Will Not Seek Fourth Trial of Galvan Brothers”

  1. Roger Rabbit

    Perhaps Mr. Reisig only did this before the judge ruled that he was going to dismiss the charges and make Reisig look like an idiot. Another cowardly face saving act by the reprehensible Reisig.

    Reisig is as crooked as a dog’s hind leg and he does nothing that does not benefit him. It is amazing how the other news just prints his propaganda and his spin like he did all this analysis when in fact, his ass got beat three times on a minor misdemeanor change and with all his talk and waste of tax payer money he could not convince 12 people, that he picked and weeded through, to agree with him.

    Had Reisig not been receiving some true and honest review and some public education had not gone on, he would be tooting his horn about how he would continue to pursue this since it is the right thing and he is not going to let someone guilty person get away with a crime. lol, now he says opps after three trails, I finally decided to review the case and figured out I can’t get water from a rock.

    And let’s not forget, he is still totally unaccountable for all the money, time and resources he wasted on a case he was not smart enough to know he could not win.

  2. Iyah

    I agree with Roger, but differ on one comment. I think the DA won because the statute of limitations ran out for the federal prosecution. I don’t think they wanted the bad press with a police brutality trial.

    This is a travesty of justice. I’m glad the persecution is finally over. I hope they can find some peace now.

  3. Fight Against Injustice

    I am glad the DA has finally decided to stop prosecuting the Galvan brothers.

    I don’t know what caused this to happen.
    1. Public opinion
    2. Public Defender’s Motion for dismissal.
    3. Judge’s opinion
    4. Articles in media sources
    5. Inconsistencies in police testimonies
    6. Statute of limitations running for federal prosecution
    7. Tax dollars being wasted

    Who knows? I am just glad that many people took the time and energy to explain and demonstrate why this case should not be retried. It is so important that people speak up when they see something wrong.

  4. E Roberts Musser

    dmg: “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.”

    I don’t think this is an accurate statement. I suspect the DA truly believed the West Sac Police Dept’s version of events – and twice very nearly got a conviction, both times w only a single hold-out against conviction. It was only during the third trial that the evidence of the police officers really began to crumble under more vigorous scrutiny…

    dmg: “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”

    What federal investigation? And what happened to it? (Sorry if I missed something in one of your previous articles about this case.) Can it be reconstituted?

    RR: “Perhaps Mr. Reisig only did this before the judge ruled that he was going to dismiss the charges and make Reisig look like an idiot. Another cowardly face saving act by the reprehensible Reisig.”

    Or perhaps Reisig dismissed the charges for the right reasons. You have no way of knowing what is inside Reisig’s head/what he is thinking…

    RR: “lol, now he says opps after three trails, I finally decided to review the case and figured out I can’t get water from a rock.”

    Would it make you happier if the DA tried this case a 4th time, so you can continue your rant how rotten the DA is? Why criticize the DA for doing the right thing here? You should be supportive of the DA’s decision to dismiss. My guess is the DA did some soul searching, and realized what Professor Vitello (sp?) had noted – the case is getting weaker rather than stronger. The DA may now be having doubts about the West Sac Police Dept’s version of events, bc of various evidence that came out in the 3rd trial.

    I, for one, am glad the DA has chosen to dismiss the charges and not try this case for a 4th time. It is the right thing to do under the circumstances. The West Sac Police Dept will be left to defend itself in the civil suit – which is going to be very difficult considering the circumstances of this case. What I hope comes out of this is some soul searching on the part of the West Sac Police Dept into reforming its “use of force” policies which seem “excessive” in the extreme…

    FAI: “I am glad the DA has finally decided to stop prosecuting the Galvan brothers.

    I don’t know what caused this to happen.
    1. Public opinion
    2. Public Defender’s Motion for dismissal.
    3. Judge’s opinion
    4. Articles in media sources
    5. Inconsistencies in police testimonies
    6. Statute of limitations running for federal prosecution
    7. Tax dollars being wasted “

    I suspect a little bit of all of the above…

  5. David M. Greenwald

    Elaine:

    “I don’t think this is an accurate statement. I suspect the DA truly believed the West Sac Police Dept’s version of events – and twice very nearly got a conviction, both times w only a single hold-out against conviction. It was only during the third trial that the evidence of the police officers really began to crumble under more vigorous scrutiny…”

    It is an accurate statement, what you are suggesting is that it was not intentionally squandered, which I don’t disagree with. But the timeline for either state or federal prosecution has lapsed.

    I also understand that some of the DA’s own people questioned the use of force from the onset and that the DA shopped for someone like Don Cameron who would back their use of force.

    “What federal investigation? And what happened to it? (Sorry if I missed something in one of your previous articles about this case.) Can it be reconstituted? “

    Apparently there was a federal investigation but they were waiting for the criminal trial to end first and then the statute of limitations lapsed.

    To Elaine and FIA and others, I also find the timing of this announcement interesting. They could have dropped the case over the Christmas holiday when no one was paying attention. Instead they did it this week when people were, suggesting that perhaps something changed their minds.

  6. Roger Rabbit

    [quote]Would it make you happier if the DA tried this case a 4th time, so you can continue your rant how rotten the DA is? Why criticize the DA for doing the right thing here? You should be supportive of the DA’s decision to dismiss.[/quote]

    What would make me happy is for people to stop protecting and claiming that Reisig did this for some honorable reason. Funny you tell me I don’t know what is in Mr. Reisig’s mind, but you don’t have a problem saying that maybe he changed his mind for the right reason. So you can state what you think but other can’t? You must be a lawyer.

    I assure you I know Mr. Reisig and many of the people closest to him and all their opinions are the same. So unless you are getting your expert information from someone close to him or you know him personally, perhaps you should withhold your judgment about labeling my knowledge as a “rant”.

  7. E Roberts Musser

    dmg: “To Elaine and FIA and others, I also find the timing of this announcement interesting. They could have dropped the case over the Christmas holiday when no one was paying attention. Instead they did it this week when people were, suggesting that perhaps something changed their minds.”

    What do you think changed their minds? My guess – a closer assessment of what looks to be an almost guaranteed losing case…

  8. E Roberts Musser

    RR: “Funny you tell me I don’t know what is in Mr. Reisig’s mind, but you don’t have a problem saying that maybe he changed his mind for the right reason.”

    When I say “MAYBE”, I am acknowledging I don’t know and am positing my best guess as to what may have changed Reisig’s mind. Your wording implies you KNOW what is in Reisig’s mind:
    “Another cowardly face saving act by the reprehensible Reisig.”
    “I assure you I know Mr. Reisig and many of the people closest to him and all their opinions are the same.”
    Can you read the DA’s mind? Somehow I doubt it…

  9. Alphonso

    “Why criticize the DA for doing the right thing here? You should be supportive of the DA’s decision to dismiss. My guess is the DA did some soul searching, and realized what Professor Vitello (sp?) had noted – the case is getting weaker rather than stronger. “

    That statement depends on what the DA knew all along. Probably the DA knew about the weak points in the case from the very beginning and it took the Defense several trials to figure it all out. Perhaps the DA should have dropped the case much earlier if he was truly interested in representing “All” of The People. The fact that the DA almost got convictions may only indicate we almost had a travesty of Justice.

  10. Alphonso

    I will add something else-

    The case against the uninjured brother seemed to be absurd, from nearly the beginning. It seems to me the DA made a big mistake by trying to convict Fermim and that clouded the case against Ernesto -causing Jury confusion.

    The case may have been dropped because they realized the Judge would do it for them and that would make them look worse.

  11. Roger Rabbit

    [quote]Can you read the DA’s mind? Somehow I doubt it… [/quote]

    The best predictor of future behavior is past behavior. I make my opinion based on all the facts I know, not the ones I don’t.

  12. jimt

    Does anyone know if the officers involved in this altercation had prior complaints lodged against them for excessive use of force? I guess such records are generally kept confidential? But surely the prior history of behavour of these officers is pertinent in assigning blame/responsibility for this violent incident? What about the criminal record of the two accused men? Do either have an arrest or criminal record; in particular a violent criminal record?

  13. David M. Greenwald

    I know some of the officers had a bit of a history, but it’s hard to get a hold of those records.

    As for the men, I think one of them had a DUI, but that’s about it.

  14. E Roberts Musser

    Alphonso: “That statement depends on what the DA knew all along. Probably the DA knew about the weak points in the case from the very beginning and it took the Defense several trials to figure it all out. Perhaps the DA should have dropped the case much earlier if he was truly interested in representing “All” of The People. The fact that the DA almost got convictions may only indicate we almost had a travesty of Justice.”

    I agree w you that the DA should have looked more closely into the story of the police officers’ version of events, in light of the disparity in the degree of injury between the defendants and police officers. But my guess is the DA took at face value the police officers’ story, and only after the third trial did the DA realize there were just too many inconsistencies in the police officers’ version of events. What I hope comes out of all this is the WSPD takes a closer look at its own policies of “use of force”, and makes changes/does some training. I’m ever the optimist I guess…

  15. Superfluous Man

    ERM,

    “I agree w you that the DA should have looked more closely into the story…”

    It’s beginning to appear as though this is a theme (not looking as closely as they perhaps should have) with such examples as the ‘Cheese’ and CASA cases coming to mind.

    The thing is, some of these cases are pretty big deals (putting a guy in prison for LIFE for stealing cheese, no less) and predictably going to receive media attention in certain cases (CASA/Galvan Bros), yet big oversights have taken place (oops, didn’t read that pysch eval…oops, should’ve looked into the claims about the director’s prior being a F instead of a M…, etc).

    Usually, with “high profile” cases, these guys dot their I’s and cross all T’s. Just surprised…let’s not forget that report pertaining to the Gutierrez shooting…which was shockingly poor, IMO. Makes me question their ability to properly execute their duties and wonder just how bad those cases that fail to grab (or they think will fail to grab)the public/media/DMG’s attention are handled…when no one is paying attention.

    If what you say is true, that their decision may be a result of their just now getting around to looking at this case “closely”…that’s pretty telling…seeing as the incident is over five years old and has been tried three times. Really, Elaine, NOW they are looking at it closely?

    What does this tell us about the criminal justice system?

  16. David M. Greenwald

    Add to that point, the DA has the power over people’s lives, as much as any profession. If they are not doing due diligence, then they are failing in their responsibilities to the public. It’s not just about getting bad guys, about not creating undue intrusions into people’s lives if they are not bad guys.

  17. Superfluous Man

    DMG,

    “Add to that point, the DA has the power over people’s lives, as much as any profession. If they are not doing due diligence, then they are failing in their responsibilities to the public. It’s not just about getting bad guys, about not creating undue intrusions into people’s lives if they are not bad guys.”

    True and I appreciated Mr. Palik’s remarks to that effect. I fear, sometimes, that prosecutors develop this no holds barred mentality and my belief is that this is bad for the justice systemm. However, a proseuctor will gain more fans/promotions be appearing as a “tough as nails” proseuctors than as a semi-judicious, pragmatic and scholarly one. The latter may come off as “weak.”

  18. E Roberts Musser

    SM: “If what you say is true, that their decision may be a result of their just now getting around to looking at this case “closely”…that’s pretty telling…seeing as the incident is over five years old and has been tried three times. Really, Elaine, NOW they are looking at it closely? What does this tell us about the criminal justice system?”

    I think what it says about our justice system is that the DA is too ready to believe the police officers’ version of events w/o doing much in the way of investigation if the case involves possible police brutality. And I would guess that sort of bias on the part of DA’s probably occurs all over the country (look at Rodney King case and others in LA County). Clearly two things need to happen: 1) the bias in favor of the police in cases of possible police brutality needs to be addressed/stopped; 2) the police need to take a hard look at their own policies to make sure they are not supporting a culture of police brutality (much as we have done in Davis). But I also think another thing that needs to happen is public education – from an early age citizens need to understand what their rights are, and what is the best thing to do when stopped by police. Resistance is just asking for trouble. This problem has cropped up numerous times before, for example when Monica Lewinsky was “stopped” by 17 FBI agents who took her to a hotel room for interrogation, then later claimed she could have left at any time…

    SM: “It’s beginning to appear as though this is a theme (not looking as closely as they perhaps should have) with such examples as the ‘Cheese’ and CASA cases coming to mind.

    The thing is, some of these cases are pretty big deals (putting a guy in prison for LIFE for stealing cheese, no less) and predictably going to receive media attention in certain cases (CASA/Galvan Bros), yet big oversights have taken place (oops, didn’t read that pysch eval…oops, should’ve looked into the claims about the director’s prior being a F instead of a M…, etc).”

    I think you make a fair point here, and one the DA needs to think about long and hard…

  19. Superfluous Man

    ERM,

    “I think what it says about our justice system is that the DA is too ready to believe the police officers’ version of events w/o doing much in the way of investigation if the case involves possible police brutality.”

    Unless there is irrefutable evidence that the officers were at fault or abusing their authority, I think most DA’s believe it’s in their best interest to get behind the officers involved. I also believe that there’s a belief that the DA’s Office and the County’s various law enforcement agencies are on the same team, which is true to a degree. However, when it comes down to deciding what to charge it seems as though some prosecutors/DA’s are more concerned with how their relationship with a particular agency or LEO(s) will be effected, which is understandable…but can reach a level of absurdity and errode the public’s trust in the DA’s office. As Palik said, it’s not the DA’s job to always agree with the police or charge cases just because a LEO/agency sent it over.

    “But I also think another thing that needs to happen is public education – from an early age citizens need to understand what their rights are, and what is the best thing to do when stopped by police.”

    I totally agree. A lot of people refer to police “harassing” their kids and passionately argue that such contacts with law enforcement violate their rights. The problem is that in many cases they (person complaining/parents) have no idea what they’re talking about. A lot of people believe that a LEO rolling up and talking to someone or asking to speak with them constitutes “harassment” when in fact it does not.

    They need to educate themselves and their children as to what a person can do when contacted by a LEO. Pretty simple, but unlikely to happen, broadly anyway, in most communities.

    “This problem has cropped up numerous times before, for example when Monica Lewinsky was “stopped” by 17 FBI agents who took her to a hotel room for interrogation, then later claimed she could have left at any time…”

    Hard to believe a reasonable person would feel as though they were free to leave or end the contact given the presence of 17 FBI agents. I actually think the amount of officers present can create a situation in which a consensual contact turns into a detention.

  20. E Roberts Musser

    SM: “Hard to believe a reasonable person would feel as though they were free to leave or end the contact given the presence of 17 FBI agents. I actually think the amount of officers present can create a situation in which a consensual contact turns into a detention.”

    AMEN!

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