JURY ACQUITS FRESNO DEPUTY SHERIFF — PART 2

ROGER D. WILSON
Senior Trial Counsel
Rains Lucia Stern St. Phalle & Silver, PC

In the last issue of PORAC Law Enforcement News, you were introduced to the tragic accident that was compounded by the criminal charging of Jared Mullis, a detective with the Fresno County Sheriff’s Office. We last left off with Detective Mullis being held to answer for involuntary manslaughter, following his preliminary hearing. Trial began on December 2, 2019, three years after the shooting. During the interim, Mullis retired from the Sheriff’s Department.

Trial Begins
Mullis’ trial team consisted of attorney Roger Wilson of Rains Lucia Stern St. Phalle & Silver, PC, and retired California Highway Patrol Assistant Chief Bill Leist, who served as the investigator. With LDF’s financial support, they also employed the expertise of three expert witnesses, each offering opinions about key aspects of the case: Alexander Jason for gunshot characteristics and ballistics, Dr. Brian Cutler for memory and recall challenges associated with traumatic events such as officer-involved shootings and Phillip Hopper for DNA testing and analysis.

The prosecution’s theories of the case proved to be twofold: The retired sergeant’s original statement about the shooting was accurate and he only changed it after he believed his statements had resulted in Mullis being charged with a crime; and Mullis actually shot Sergeant Lucas and made up the dropped gun story to conceal his guilt.

The prosecution began its case with Rick Fields, a witness who worked at the SID and went to Lucas’ side within seconds of hearing the gunshot. Through much tearful testimony, Fields stated that he believed Lucas was shot when Mullis was re-holstering his gun — this belief came from Field’s discussions with the retired sergeant — and that when Mullis was assisting with lifesaving measures, he said, “I’m sorry.” The prosecution implied to the jury that Mullis’ words were an admission of guilt.

The next two prosecution witnesses testified that Mullis was acting strangely after the shooting and that he became “hot” when he heard others saying that he had accidentally shot Lucas. One witness, a lieutenant, who was clearly biased against Mullis, went so far as to say that one of the detectives in the room during the shooting — Detective McSwain — told him that he saw Mullis shoot Lucas as he was re-holstering his gun. During cross-examination, the lieutenant admitted he had never repeated this story to anyone before the trial. The following day, when McSwain testified, he denied making any such statement to the lieutenant, and reiterated that he did not see the gunshot to Lucas.

Some prosecution witnesses actually provided testimony that was very beneficial to Mullis. For example, the DSA president explained to the jury that deputies often experience severe emotional ups and downs and memory gaps following a critical incident like that experienced by Mullis. Consequently, the assertions that Mullis was “hot” or angry following the incident, or that he could not remember every detail of the events leading up to the shooting, were completely appropriate and common experiences for those involved in such critical incidents.

Another example was the statements made by Detectives Maldonado and Davis, who admitted that the Department knew the retired sergeant’s version of the shooting was not possible as early as one month following the shooting, after they received the DOJ ballistic and forensic test results. The Department and the prosecution knew the holsters blew apart, that the gun would drop from the holster when held muzzle up with just a slight shake, and that the fingerprint, GSR and DNA tests and analyses were essentially inconclusive. Yet, despite this wealth of exculpatory evidence, the Department and prosecution opted not to pursue any other leads or theories of how Lucas could have been shot. Rather, they simply stopped doing any investigation at all and let the case continue against Mullis.

Lastly, the crime scene technicians confirmed that the GSR evidence collection was grossly mishandled — not by them, but by the Department — and that Lucas’ T-shirt was handled roughly by many people, causing important GSR evidence to be lost. The DOJ criminalist confirmed that the retired sergeant’s version was nonsense, that the muzzle-to-wound distance could be less than 24 inches and that Mullis’ firearm could short-stroke — failure of the gun to load a new round after discharge — if the slide movement was impeded by the floor, as when the gun is discharged while falling.

The coroner testified at trial consistent with his preliminary hearing testimony. However, to bolster his 32-inch estimate, he testified that Lucas could not have accidentally shot himself because he did not have stippling or gunpowder tattooing on either arm or hand. During cross-examination, the coroner admitted Lucas could have shot himself and not left stippling on his arms or hands, that the now-infamous 32-inch measure was completely unsupported by any forensic science or evidence, and that the bullet traveled in an upward and front-to-back path.

The retired sergeant testified for close to an entire day. The takeaways for the jury from his testimony were that he did not see the shot because he was probably on his cellphone and that he was an unreliable eyewitness.

Surprise testimony came from Maldonado and the DOJ criminalist, who explained that almost one year after the shooting, the Department’s Internal Affairs (IA) investigators requested additional ballistics tests on Mullis’ gun and holster. The IA investigators knew of Mullis’ defenses raised during the preliminary hearing, so they at least attempted to either confirm or debunk those defenses through additional testing. Specifically, the IA investigators wanted answers to these additional questions:

1. Would the holster remain intact if a bullet was fired from the gun near the holster’s entrance, but not actually inserted into the holster?
2. What is the shell extraction pattern of Detective Mullis’ M&P Shield?
3. Will Detective Mullis’ M&P Shield discharge if dropped on the floor?
4. Will a spent casing fully eject from the M&P Shield if fired with a loose grip?
5. Can the M&P Shield be removed from the holster easily?

The IA investigators supplied the DOJ with five more holster replicas for their tests; the DOJ used only one. When Mullis’ gun was fired with the muzzle near the holster opening, the holster blew into three pieces. The spent casing extraction pattern test was performed by DOJ, but the criminalist testified on cross-examination that the test was meaningless because Mullis’ gun was fired inside a room containing many hard surfaces on which the casing could ricochet and bounce. Further, because no one knew for certain the orientation of the M&P Shield when it was fired, the criminalist test fired the gun in the standard shooting position, 57 inches above the ground. 

The criminalist was certain the M&P Shield would not discharge when slammed on a concrete floor or hit with a rubber mallet — his methods used to determine if the gun would fire if dropped on the floor.

The M&P Shield could be removed from a new Kydex holster similar to Mullis’ holster, with as little as one-half pound of pull; and, this was when the gun was held in the holster with the muzzle toward the ceiling, with no bullets or magazine. Mullis’ gun was fully loaded at the time it dropped from his used Kydex holster.

The loose grip test performed by the DOJ criminalist proved controversial. Mullis maintained that Lucas accidentally depressed the trigger when he was attempting to catch the falling firearm. The DOJ criminalist testified that the M&P Shield’s two-part trigger could not be depressed sufficiently to fire the gun if the gun accidentally fell. During cross-examination, it was pointed out to the criminalist that he used a piece of string to pull the trigger with his hand from a distance of over 3 feet while loosely holding the firearm, yet, he was able to depress the two-part trigger. The criminalist finally admitted it was possible to depress the trigger sufficiently to fire the gun, if the gun was falling. 

It was during this cross-examination that the DOJ criminalist also admitted that Mullis’ gun could short-stroke if fired when falling and the gun’s slide movement was impeded by hitting the floor. 

The IA investigators’ additional testing results were made known to the homicide detectives and the prosecutor in October 2017. However, despite the growing reasonable doubt presented by the Department’s own forensic tests, the prosecution of Mullis continued unabated. At no time was a settlement offer made by the prosecution; they simply expected Mullis to plead guilty to the felony manslaughter and the judge could sentence him accordingly.

Mullis’ case started with expert witnesses Hopper, Jason and Dr. Cutler. Hopper, the DNA expert, did not need to testify after the parties stipulated that the DNA results were inconclusive when it came to Lucas’ profile being absent from the gun. 

Dr. Cutler explained to the jury how the retired sergeant was uncertain about what he saw and that he likely filled in the missing gaps in his recall with his years of training as a range master and firearms instructor and also from suggestions made to him during the district attorney’s walk-through interview. Essentially, according to Dr. Cutler, the sergeant was not lying, he was simply conflicted because he did not see the gunshot that killed Lucas, yet he was standing very near both men when the shot was fired.

Jason explained how the coroner was completely off the mark with his 32-inch “guesstimate” and his new theory about arm and hand stippling or powder tattooing.  Importantly, Jason was able to demonstrate to the jury that Lucas was shot from below since the bullet path angle was not only upward and to the right, but also very sharp in relation to Lucas’ torso. Had Mullis shot Lucas as the prosecution contended, Mullis would have had to be seated on the floor and pointing the gun upward toward Lucas when the shot was fired.

Lastly, Jason explained that the DOJ criminalist’s muzzle-to-wound testing procedure was correct, but the criminalist failed to account for the upward angle of the shot and failed to use a cotton T-shirt for testing material. Jason explained that GSR particles can actually skip off surfaces when shot at an acute angle, like the one in this case. Further, filter paper and a cotton T-shirt have different absorbency properties, so using paper was not an accurate reproduction of the shot that killed Lucas. Jason was able to clearly show the jury that it was not only possible but highly probable that Lucas accidentally shot himself while attempting to catch a falling firearm.

Next came the two narcotics detectives who testified at the preliminary hearing about  Lucas’ habits of carrying his concealed gun without a holster and catching it mid-air when it fell from his waistband. One detective testified that he had seen Lucas’ un-holstered gun slide from his waistband down his shorts and out the leg of his trousers and that Lucas would kick the gun up with his foot so he could catch it mid-air. He had seen this occur more than one time while they were working in narcotics at SID.
Mullis also testified on his own behalf. Mullis is a very serious person who had hoped he could spend his entire law enforcement career at the Fresno County Sheriff’s Office. He simply loved his job and he loved Lucas, who he saw as a mentor and father-figure. Mullis professionally, politely, methodically and truthfully explained to the jury that he is a son, brother, father, spouse, friend and colleague, that he loved his job and that he did not shoot his good friend Lucas. 

We concluded Mullis’ case with testimony from three character witnesses who worked with or supervised him at the Sheriff’s Department. These witnesses proved critical because they rebuffed the prosecution’s assertions that Mullis was reckless with his firearm. The prosecution asserted that Mullis was criminally negligent and responsible for Lucas’ death because Mullis had: (1) pointed his loaded firearm at Lucas; and, (2) placed his finger on the trigger of the gun when he pointed it at Lucas. While the finger-on-the-trigger theory was already debunked by the retired sergeant, who repeatedly said he never could see Mullis’ trigger finger so he had no idea where he placed it, the character testimony rebuffed the first accusation that Mullis would point a loaded gun at someone.

For the most part, closing arguments for both sides followed their respective theories of the case. The prosecution asserted the testimony from witnesses Jason and Dr. Cutler should be disregarded because they were paid to say things favorable to Mullis. The prosecutor asserted that Mullis was reckless with his pistol and that the jury should convict him of killing Lucas.

A theme that became clear throughout the trial, but was crystallized by Leist, was that “recklessness [or carefulness] is a pattern behavior.” This simple truth took on greater meaning during closing argument because of the statements his fellow narcotics detectives used to describe the cavalier behavior of Lucas when handling his firearm. In hindsight, it was obvious that an accident was bound to happen if he continued with his reckless behavior. Unfortunately, that accident occurred when Mullis handed him the gun.

The Acquittal
After almost three weeks of testimony, the jury deliberated for just over one hour before returning a not guilty verdict. Mullis, who retired from the Sheriff’s Department following the tragic death of his dear friend and mentor Lucas, wept inconsolably in the courtroom when the verdict was read. Mullis hugged his wife for what seemed like 10 minutes, as both sobbed. When he was finally composed a bit, Mullis hugged his attorney and investigator. Mullis, his family and friends were very thankful for the work of their legal team and for the continued support from PORAC LDF throughout the entire ordeal.

About the Author
Roger D. Wilson is a senior trial counsel with Rains Lucia Stern St. Phalle & Silver, PC, and practices in the firm’s Legal Defense group. He represents peace officers in administrative, disciplinary, critical incidents and criminal defense matters.