Jury Acquits the Officers in Gutierrez Case of Wrongdoing and Liability

ANALYSIS – Throughout the trial that seemed to stretch on far longer than the 13 calendar days it encompassed, the hope was that, win or lose, this trial would provide closure to the grieving family of Luis Gutierrez who was gunned down by plain-clothed sheriff’s deputies on April 30, 2009.

The odds from the start seemed stacked against the plaintiffs. After all, they had only three witnesses who actually saw what happened that day and none of them saw everything.  How were they going to prove this case, even at the lower civil trial level of preponderance of the evidence?

Then there was the curious decision by the plaintiffs not to use any of their peremptory challenges to dismiss any of the jurors.  This left the panel at 8 women, all white except one Asian lady, most of them rural, and one man – a former police cadet.

At the end of the day, while the statements made by jurors were a bit stronger than perhaps warranted – with one juror telling the Sacramento Bee that, while they feel badly for the family, with the law and the facts as they were, this was a just verdict – the plaintiffs probably did not prove their case.

But the real tragedy here is that there are real questions in this case that were simply unanswered.

The chain of events began with a consensual stop in which the deputies all admit that Mr. Gutierrez was simply walking down the street.  Under the law they have the right to make a consensual stop, but in a consensual stop the individual has the right to leave.

Does flight and flight alone give the sheriff’s deputies a reason to pursue?  Paul Caputo argued that flight alone should not have been sufficient.  The defense offered that Mr. Gutierrez did not just flee, he put his hands in his pockets and ran into traffic.

Lt. Johnson testified that it’s not normal for someone to turn and run. So, something could be taking place. Some criminal act could be occurring. He could have just committed a crime, or been on active parole, or it could be that he was wanted.

However, Lt. Johnson contradicted his own attorney, arguing under oath that running alone was sufficient basis for pursuit.

Adding to the puzzle is one of the unresolved mysteries of the case – what did Mr. Gutierrez see when approached?  Did Mr. Gutierrez see badge or simply the gun?  Did Lt. Johnson properly identify himself?

The plaintiffs brought in an expert, Mr. D’Arcy, who testified that Lt. Johnson did not properly identify himself.  The police brought in their own witness that contradicted him.

The problem here is that it is crucial to know if Mr. Gutierrez thought he was fleeing from police or thought that these men were actually gang members themselves.

The next critical question is the knife.  The sheriff’s deputies claim that Luis Gutierrez pulled out a knife and slashed.  Now briefly the plaintiffs argue that if the deputies provoked the confrontation, that they are not entitled to self-defense.  But it seems that the crucial question is the degree to which we can reasonably believe that Mr. Gutierrez had and used the knife.

If Mr. Gutierrez were on trial with criminal charges for assault on a police officer, I think the evidence here would have been sufficient to acquit him.  But putting the burden on the plaintiffs, it is a difficult case to make.

We really have to believe that the deputies planted the weapon on the scene.  While there are troubling problems with their account and a lack of physical evidence in terms of blood on the weapon, the inconclusiveness of the DNA, and the lack of finger prints – the plaintiffs did not come close to proving that the weapon was planted.

But the story by the deputies is not credible.  The idea that he would be running down the street with an open knife, hand in his pocket, defies a lot of logic.  When did he open the knife?  Clearly, he did not open the knife before the attack, because then he couldn’t have pulled his hand out of his pocket and make the slashing motion.

But try running at any speed with an exposed knife blade in your pocket.  You also have the problem of his allegedly throwing the knife after being hit by bullets – the analysis seems unlikely.

That his family never knew him to carry a knife is not a convincing argument to me.  While it was inscribed with “fire fighter,” it seemed common enough that non-safety personnel might have a pocket knife.

The witnesses never saw the knife, but one of the witnesses admitted to not having been looking for one, while with the other, it is not clear how good a look she got or how accurate her account would be.

In short, we are still troubled by the knife in this case, but do not see enough to believe that the plaintiffs proved, even circumstantially, that the deputies planted it on the scene.

The use of meth by the defendant does not prove, of course, the deputies’ version of events, but it could go a long way to explain what would otherwise be irrational behavior as to why an individual fled the police despite having committed no crime.

The defense brought in Dr. Raymond Kelly, who testified that Mr. Gutierrez had recently used meth and that at the levels he did, it could have made him “violent and irrational.”  He testified that, while he would have been able to perform everyday ordinary tasks without a hitch – as the insurance broker and the employee at DMV testified, when faced with a stressful situation his conduct would become increasingly irrational.

Dr. Kelly testified that the blood results showed “420 nanograms” of methamphetamine “per milliliter” of body fluid.  Any amount higher than 100 ngs, he would testify, constituted an “abuse level,” as opposed to a “therapeutic level.” Dr. Kelly testified that the measurement was “well into the abuse level.”

Critically, he placed the time that the meth was consumed at between noon and 1:30 p.m. on the day in question.

But there are problems here, as well.  It is not clear when he would have taken the drug.

Mrs. Gutierrez said in her testimony that she went to the bank at 11:30 with Luis Gutierrez and they got to the insurance office at noon.  They left the insurance office about 12:30 and ended up at the DMV at 1 pm.

Rosaria Ordonez sells insurance, and 75% of her clients are Hispanic.  She testified that Mr. Gutierrez came in around 12:10 accompanied by his mother on April 30.  He left around 12:29 (the time is on the policy when she printed it out) after signing four pages.

Cheryl Perry testified that he came in to take the DMV test just after 1 and it would have taken him 30 to 40 minutes to do so.

That puts the time at around 1:30 to 1:40.  Just perhaps 20 minutes before the fatal encounter.

There are considerable disagreements about the amount of meth in his system.

Mr. Kilday argued that there was no contradiction in the meth amounts.  On April 30, Mr. Gutierrez had meth in his system, he said.  The defense argued that he that it was at an abuse level, and therefore it affects people, makes them suspicious, makes them have irrational behavior and be aggressive.

He stressed that there is no contradiction about the amount in his system. It doesn’t matter, it was over 100 ng/ml. There are studies about abuse levels. There is no question it was an abuse level.

He continued arguing that Mr. Caputo said the evidence of the femoral artery was kept away from Dr. Kelly because it wasn’t 200 ng/ml. The stipulation from Tuesday was 420 in one sample and 160 in another. Dan Coleman said over 100 is an illicit dose, not a therapeutic level. No matter which you use it’s still over 100.

However, the defense erred on the stipulation.  Moreover, Mr. Caputo argued that what is troubling is that Dr. Kelly was never given the sample from the femoral artery with the lower meth number. Other experts said if the sample is from the heart they are skeptical of the results.

The jury here probably did not have to wrestle with the meth issue because, quite simply, even if he used meth, it does not prove that the officers acted appropriately.  Could Mr. Gutierrez have left the DMV, taken the meth, and proceeded on his way home?  It seems plausible.

But when the deputies stopped him minutes later, they did so with no suspicion of intoxication from a controlled substance.

The bottom line is the jury may not have had enough to find for the plaintiffs, but there is a troubling string of evidence here that the deputies did not act as they should have and that they may well have escalated a situation where the individual was simply walking home, minding his own business, alone in the middle of the day.

There is far too much, as we close this chapter, that we will simply never know.

—David M. Greenwald reporting