ANALYSIS – As the Federal Civil Rights Suit trial wrapped up last week, the Sacramento Bee‘s Denny Walsh does an exceptional piece in which he argues “jurors must ask: What about the knife?“
As Mr. Walsh writes, “The jury’s verdict likely will swing on whether the plaintiffs’ lawyers have sown enough doubt in jurors’ minds that Gutierrez did not have the knife when the shooting occurred.”
This despite the burden of proof resting on the side of the plaintiffs.
Just how important is the knife? Mr. Walsh notes, “If there was no knife when Oviedo fired the fatal shot, either Gutierrez would be alive today or his death would be indefensible.”
Rather than attempting to replicate his thorough account of the evidence, we will take his piece as a starting point and ask the question that the attorneys never dared ask explicitly – what evidence is there that the knife was planted?
Before we get there, let us evaluate one other key point that the defense makes – and that is their effort to diminish the importance of the knife.
Under most law, an individual is entitled to self-defense. That is, if the individual reasonably believes that he or she is in imminent danger of being killed or suffering great bodily injury, the individual may use deadly force if necessary to defend against the danger.
But within that is the stipulation that the self-defense not be contrived. That means that a person may not have the right to self-defense if he or she provokes the fight or creates the situation that leads to necessary use of the self-defense.
The plaintiffs argue that the police may have provoked Luis Gutierrez. They did not have a lawful reason to detain him. Yes, the plaintiffs acknowledge that Mr. Gutierrez ran away, but argue that the decedent’s flight from officers was insufficient to later justify a seizure.
The officers intentionally or unintentionally provoked a violent provocation, plaintiffs’ Attorney Paul Caputo argue. He contends that officers may be held liable in the use of deadly force. Even if they fired in self-defense, they can be held liable if there was unnecessary provocation that created the need to use force.
But the bulk of the contention by the plaintiffs seems to be that there was no knife. And if there was no knife, it had to have been planted by the defendants as their defense. But the plaintiffs never explicitly make that argument.
As Mr. Walsh notes, “There is no way the parents’ San Jose attorneys, Paul Caputo and Robert Burchfiel, can prove the knife was planted at the scene.” Instead, “They have pounded home to the jury what they believe is the circumstantial evidence to suggest that it was: the two witnesses whose testimony dramatically contradicts the deputies; the lack of evidence Gutierrez was known to have a knife, or that he was prone to violence; the absence of blood on the knife, even though photos of Gutierrez’s body lying on the street show a lot of blood on his right hand, where he purportedly held it.”
Much was made at the trial as to whether the knife, which is inscribed with “fire fighter” on the blade, was the knife used by first responders. That may at first glance suggest that the knife was planted, but as Mr. Walsh notes, “Variations of the knife are readily available on the Internet.”
The two witnesses never saw a knife. Lyndsey Fletes, for instance, testified that she did not recall seeing the knife, but acknowledged she was not paying attention to his hands.
Vienna Navarro, on the other hand, claims she got a good look at Mr. Gutierrez’s hands and never saw a knife, supposedly seconds before he was shot.
When she was questioned by Detective Darren Imus of the Woodland Police Department, she testified that at one point he left the room, “and, when he returned, he pulled a knife out of the sleeve of his jacket and asked her if she had seen the knife before he pulled it out. She acknowledged she had not.”
However, as Mr. Walsh notes, “The problem with that demonstration, as Navarro pointed out, was Gutierrez couldn’t have been hiding the knife in a sleeve. He was wearing a T-shirt.”
The DNA evidence presented by Shawn Kacer, a supervisor at the State Department of Justice crime lab, was conflicting. The DNA on the knife ruled out any of the officers, but could not rule out Mr. Gutierrez.
The defense focused in on the fact that the DNA profile would only include a small number of possible individuals in Woodland – Mr. Gutierrez being one of them.
However, Mr. Kacer, under cross-examination, acknowledged that the genetic markers from the knife are more likely in the Caucasian population.
The plaintiffs also note that Mr. Gutierrez’s hand that he was most likely to use was covered in blood, and photos shown of Mr. Gutierrez’s body show blood covering his right hand – the hand with which he allegedly held the knife.
The deputies gave conflicting testimony on how Mr. Gutierrez fled from them. Lt. Johnson testified that he put his hand in his pocket and immediately ran away from deputies. He testified that Mr. Gutierrez had his hands in his pockets the entire time while Mr. Oviedo said his hands were in and out of his pocket.
As we noted previously there are some problems with this testimony. First, neither officer saw him open the blade of the knife. Instead, Lt. Johnson testified that he pulled the knife out of his pocket and slashed at him. Deputy Oviedo claimed it was more of a stab.
Regardless, neither describe him opening the knife. That means that he had to have been running down the street – at close to full speed with a knife exposed in his pocket.
Mr. Caputo and Mr. Burchfiel present pretty good evidence that the totality of the circumstances was manufactured in creating the articulable reason to stop Mr. Gutierrez. But if Mr. Gutierrez had a knife and attacked the deputies with it, it may not matter unless the jury adopts the provocation exception to self-defense.
One notable absence from this trial appeared to be a critical link to Mr. Gutierrez’ propensity to use knives – his gang activity. Investigators in their report cited a Rudolfo Flores who told investigators that Mr. Gutierrez was a good knife thrower.
“According to Flores, the deputy was lucky not to get killed because Gutierrez, who is a Sureño gang member, is a dangerous person and had said he would not let the cops take him.”
Furthermore, “Flores advised he knew Gutierrez (Navarro) as a Sureño because since he (Flores) associates with Sureños. Gutierrez always carried a knife and was good with it. Gutierrez’s nickname was ‘Indio’ because he was good with a knife. Flores knew Gutierrez used controlled substances and was considered dangerous.”
Of course, we could never locate Mr. Flores and apparently neither could the defense in this case. There had been indications when the Vanguard searched for him that he had been deported.
His testimony never made a good deal of sense as Mr. Gutierrez had a very limited criminal record, mainly involving vehicle code violations for driving without a valid license (something he was clearly attempting to remedy on April 30, 2009).
The DA in their report noted, “In the 15 verified contacts prior to April 30, 2009, there were no indications of any issues, conflicts, or confrontations between Navarro and officers. There is no record or indication of Navarro engaging in any type of resisting or assaultive behavior toward law enforcement or of Navarro being under the influence of a controlled substance.”
The bottom line here is that Mr. Caputo and Mr. Burchfiel create a lot of problems for the defense with regard to the knife. There is no direct evidence linking Mr. Gutierrez to the knife. They produce no witnesses who testified knowing that he used it, the DNA was inconclusive, there were no fingerprints, and there was no independent corroboration by the witnesses.
On the other hand, they never do prove that the knife was planted and were careful never to explicitly allege that it was, only suggest, given the type of knife that it was, that it might have been.
It will be interesting to see what the jury comes up with in weighing this portion of the testimony.
—David M. Greenwald reporting