By David M. Greenwald
San Luis Obispo District Attorney Dan Dow was already under fire for his handling of the Tianna Arata case last summer, but that heat could be turned way up as video was presented in court in another case, which shows the driver hitting a protester as marchers blocked Highway 101 during a July protest.
Incredibly, the DA’s office had filed charges against the victim in the case, but now the attorney representing Sam Grocott showed previously unreleased police drone footage that shows the motorist is likely guilty of assaulting the protester.
Video posted by San Luis Obispo Tribune:
The new evidence, which clearly had been in the possession of the police and DA, shows something very different than prosecutors described. The video shows the BMW attempting to drive around a group of protesters on the shoulder of the freeway, a verbal exchange, and then the motorist driving straight into Grocott, forcing him onto the hood of the vehicle as it accelerates past the crowd.
Unlike previous drone footage, this footage was not released by the police. The attorney for Grocott contends that is because it contradicts the CHP’s version of events.
This is another clearly black mark against DA Dan Dow. Back in December, Judge Matthew Guerrero ruled that Dow had a clear conflict of interest, requiring him to recuse himself from the criminal case against 20-year-old protest leader Tianna Arata, as well as six other activists.
According to a report from Josh Friedman published in the Vanguard last December, “The ruling hinged on the district attorney’s wife and reelection campaign having sent a fundraising email that appeared to reference the Arata case. The email, which went out to Dow’s supporters just days after his office filed charges against Arata, stated Dow was leading the fight against the ‘wacky defund the police movement and anarchist groups.’”
In January both the DA and AG Becerra’s office appealed the ruling preventing the DA from handling the matter—another time when AG’s Becerra’s office has opposed a local judge attempting to hold local prosecutors accountable.
The peril in this case, however, could be a lot higher for DA Dow—if it is determined that his office or the CHP intentionally withheld evidence deemed exculpatory, it could be viewed as a Brady violation. In 2016, California made it a felony for prosecutors to intentionally withhold evidence that defendants might use to exonerate themselves.
Ironically, it was the Orange County informant scandal, a previous time where the AG defended clear misconduct by a prosecutor which inspired this one.
At the time, Assemblymember Patty Lopez told the LA Times that “the legislation was not specifically inspired by events in Orange County.” But, Lopez said, “the controversy surrounding the office of longtime Dist. Atty. Tony Rackauckas spurred the bill’s advocates and informed the debate on the state Senate floor.
“I hear so many stories about innocent people across California, and across the country, who have been wrongfully convicted,” Lopez said. “I just hope that when people think the rules don’t apply to them, they will think twice before they abuse their power.”
Ultimately an Orange County judge removed the DA’s office in the prosecution of mass murderer Scott Dekraai—the AG’s office fought that and also attempted to get an appellate court to reinstate the death penalty, but both failed.
In San Luis Obispo, the local media unloaded on Dow and his office.
In an editorial Friday, the paper noted: “Finally, we get to see police drone footage of a silver BMW heading into a knot of protesters blocking the freeway during a July 21 Black Live Matter march in San Luis Obispo. Yet it’s the belligerent driver — who reportedly regretted not having his Glock with him — who is labeled the victim by law enforcement.”
Despite the evidence now emerging, it was the protesters, not the driver who are facing criminal charges, “even though the video clearly shows the driver first tapping a bicycle with his vehicle, then heading straight into protester Sam Grocott, who winds up hanging on to the hood of the car for several seconds.”
The editorial continues: “(T)his basic fact is incontrovertible: The driver of the BMW kept going, even as protesters blocked his way,” the paper writes. “We’ve got to ask, why has it taken nearly six months to release this video — and then by [defense Attorney] Barrientos, rather than by police?”
Was this illegally withheld from the defense until now?
The paper rightly asks, “So why have police been sitting on this drone footage for months?”
In the Arata case, the question is, why prosecute the defendant? And in this case, the question is even more serious—why is Dow prosecuting the protesters rather than the perpetrator in this case?
Reasonable people can argue that protesting on a freeway is ill-advised, illegal and dangerous. No doubt. But that’s no longer the issue in this case. The driver does not have the right or authority to intentionally run over a protester and the DA and police certainly do not have the right to lie about the evidence and withhold it from the defense and public.
In a week where the California District Attorneys Association is already under scrutiny after LA DA George Gascón withdrew from their organization, pointing out their disproportionate leadership from small rural counties and lack of diversity on the board, Dan Dow sits on that board of directors.
As Assemblymember Sydney Kamlager wrote in the Appeal on February 1, “It appears that the CDAA’s real purpose is to fight every criminal legal reform that comes to California. While it lobbies behind the scenes to water down reform legislation, the association’s public face is also one of vehement opposition to any policy with the potential to reduce California’s prison population.”
Now one of their leaders is facing potential problems for malicious prosecution, Brady violations and perhaps overall dishonesty in this current case. It certainly calls for stronger action by the CDAA and the Attorney General to rein in these prosecutors.
—David M. Greenwald reporting
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