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Shasta Marshal’s Sergeant Acquitted

Posted on Sunday, January 01, 2006 at 12:00PM
Posted by Harry S. Stern

After a week-long trial that included testimony from a self-proclaimed “lover-not-a-fighter,” a shackled and sedated “victim,” and an expert on police use of force who had never been a police officer, as well as the tragic death of the presiding judge, a Redding jury took only 3 hours to acquit Shasta Marshal’s Sergeant Dan Neville.

Shasta is one of only two counties in the state that is served by an independent Marshal’s office whose officers serve as bailiffs for the courts. The case arose out of an incident in a holding cell in the Shasta County Courthouse.

The Incident

On March 22, 2004 a convicted felon named Raymond Iorg caused a ruckus during a family law hearing. Iorg, who was in custody on other charges, screamed that his wife was a “f_____g whore” and otherwise disrupted the proceedings. The judge ordered that Iorg be removed.

Iorg calmed down for a time, until he was placed into a holding cell while awaiting return to the county jail. First, Iorg kicked off his jail slippers which, apparently, caused him to land on the floor with a thud. Next, Iorg, despite being in leg irons and having his wrists cuffed to a belly chain, hopped up on a cement bench and began yelling various epithets into the cell’s vent. Iorg believed that this “jailhouse intercom” would allow his wife to hear his threats and curses.

The commotion drew the attention of another deputy. This self-described “lover-not-a-fighter,” began to engage the 240 pound tattooed Iorg in polite conversation. The deputy attempted to placate Iorg by expounding upon the fleeting nature of one’s problems and otherwise sharing his philosophies about the meaning of life. Apparently, Iorg wasn’t interested in this discourse and smashed his own head into the safety glass that separated him from the deputy.

Despite Iorg’s aggressive and irrational behavior, the deputy continued trying to be a “good listener” for Iorg. Suddenly, Iorg turned and bashed his forehead into the cell’s cinder block wall, causing blood to trickle down his shaved pate.

Fortunately for Iorg, as it turned out, Dan Neville arrived in response for calls for assistance on the radio. Sgt. Neville quickly assessed the situation. The deputy’s main concern seemed to be to obtain a camera to document the injuries, regardless of the fact that Iorg was continuing his assault on his own persona and the cell interior.

Sgt. Neville firmly told Iorg to “calm down, sit down” at least twice. Iorg’s response was to yell, “f__k you!”

Sgt. Neville was now faced with a large, belligerent, and defiant, inmate who, despite being restrained, had demonstrated both his pain tolerance and his agility. Accordingly, Sgt. Neville decided to use pepper spray—a low-level force option—as a means of controlling the deranged felon.

Neville asked the deputy working in the control room to open the sliding door. Neville warned Iorg that he was about to be sprayed if he did not obey his commands. Not surprisingly, Iorg did not comply.

Therefore, Sgt. Neville began to pepper spray Iorg. Iorg turned to get away from the spray and Neville continued to apply the spray to the back of his head. After several seconds, Iorg got down on the ground and scooted out of the cell as directed.

Sgt. Neville immediately began to assist Iorg and, in the words of one deputy, “consoled” him.

Under any reasonable standard, the situation ended perfectly: Iorg suffered only the expected irritation from the pepper spray and was taken back to the jail without further problems; no deputies were injured since they did not have to grapple with Iorg in the close confines of the holding cell.

However, the “lover-not-a-fighter” deputy had a different opinion. The next day, the deputy wrote a scathing memorandum to the Marshal essentially accusing Sgt. Neville of using excessive force.

Although the Marshal cleared Dan in an initial investigation, the case was referred to the District Attorney’s Office. For reasons unknown and unfathomable, the D.A.’s office filed a three count criminal complaint against Dan. In a concerted effort that has become all too common, the D.A. and the Marshal’s Office attempted to leverage a settlement: The D.A. offered that Sgt. Neville plead to an infraction that included as one of its terms “removal from office.” In other words, the D.A. was doing the Marshal’s dirty work by trying to convince Dan to drop the appeal of his termination and slide quietly off into the sunset.

The D.A. and the Marshal’s Office seriously underestimated Dan’s resolve. Dan did nothing wrong and was adamant that he would not accept any kind of a deal that would end his career.

The Trial

On November 14, 2005, some 19 months after the incident, we began selecting a jury to hear Sgt. Neville’s case.

I explained to the jurors in my opening statement what they could expect from the prosecution. Among the D.A.’s witnesses were the “lover-not-a fighter,” a use of force expert who had never actually been a peace officer, and career criminal Raymond Iorg.

I believe that I delivered on my promises and demonstrated the weaknesses of the D.A.’s case during cross-examination: The complaining deputy was at a loss to explain his complete inaction. The deputy did, however, correct me by explaining that he was “empathizing” with the raging inmate, not “sympathizing” as I had suggested.

Among the other highlights was the testimony of the “victim” Raymond Iorg. Iorg arrived from state prison in shackles and leg irons and proceeded to simultaneously amuse and frighten everyone in the courtroom with his wild statements and menacing demeanor: Iorg even denied causing the contusion on his forehead. He testified that the injury occurred when one of the deputies tackled him from behind—-a claim that he had never made before and which was contradicted by all of the other witnesses.

At the conclusion of the prosecution’s evidence, it was clear to me that the jury was completely unconvinced. Accordingly, Dan and I decided to put on only one witness. We called Dave Rose, a retired lieutenant and 28-year-veteran of the Placer County Sheriff’s Office, and an extremely experienced trainer and use of force expert.

Rose’s testimony was captivating as he clearly explained both the inherent dangers presented by Iorg and the obvious justification for Dan’s use of pepper spray, a low-level force option. When it was her turn to cross-examine Rose, the prosecutor stumbled into an unexpected trap. Apparently, trying to establish that the holding cell had been turned into a veritable gas chamber by the pepper spray, the D.A. asked Rose if the “fumes” weren’t dangerous why were the inmates in the neighboring cell able to smell the pepper spray?

Rose, in a demonstration of the quick thinking and level head that made him a great cop, analogized the odor of the spray to cooking on a stove: just because you can smell the spaghetti down the hall doesn’t mean it is actually getting on you. I asked Dave later if he had thought of that answer beforehand. Dave said that the explanation just came to him on the fly. It is moments like these that make trial work so interesting.

After hearing all of the testimony, viewing the other evidence and listening to closing arguments, the jury deliberated for a short time and came back with not guilty verdicts on the force charges. Although, the panel deadlocked on an allegation that Sgt. Neville filed a false police report, the resounding not guilty verdicts on the most serious charges and the prosecution’s claim that the allegedly false report had been concocted to cover up the force make a retrial on that charge unlikely.

Dan was, of course, extremely pleased and gratified by the jury’s vindication of his actions. Although Dan Neville’s journey is not completely over (stay tuned for the Arbitration of his termination from the Marshal’s Office) the jury’s verdict was certainly cause for celebration. Dan expressed his great thanks to the Legal Defense Fund for the support, which included the “usual and customary” assistance such as experts and investigators, and also a visit to the trial from LDF Legal Administrator Larry Friedman.

Addendum

As a footnote, the trial was marred by the death of the original assigned judge, the Hon. Winslow Christian. Judge Christian presided over the first two days of the trial. He was struck and killed by a car while crossing the street to his hotel. Judge Christian was a retired Justice of the California Court of Appeal, First District. Judge Christian was assigned to the case as a visiting judge since the entire Shasta County Superior Court bench recused themselves.

Judge Christian had a long and distinguished legal career that included service as a Deputy Attorney General, the District Attorney of Sierra County, a Superior Court Judge and a Justice of the Court of Appeals. He was a graduate of Stanford Law School.

I had the pleasure of speaking with Judge Christian after court had adjourned for the day. He regaled me with a number of fascinating stories from his time on the bench as well as his career as an attorney. It was an honor to have tried a case before him.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.