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The Defense of Dan Lovelace for Second Degree Murder

Posted on Monday, November 01, 2004 at 12:00PM
Posted by Craig Mehrens

Chandler police officer Dan Lovelace responded to a priority one call, forged prescription in progress, on October 11, 2001 at approximately 3 p.m. He was the first officer to arrive at the scene on his motorcycle and he parked his bike in front of Ms. Nelson, the suspect who was in the outside drive-through bay of a Walgreen’s pharmacy (Officer Lovelace could tell that Nelson was engaged in conversation with the pharmacist and did not feel parking his bike in front and blocking her was unsafe at that moment). He approached Nelson and politely asked for identification. She said she had none, although her purse was clearly visible in the seat. He then told her his purpose and said that he thought that this matter would be cleared up shortly, but that he noticed that her license plate was down as he approached her car (clearly giving him more information that she was involved in this crime). He asked that she remove the keys from her ignition and place them on the dash, which she did. He then went to the back of the car to put her license plate up. As he did so and was calling in the plate number, and began walking back toward the driver’s side in the empty bay. Nelson put the keys in the ignition, and started her car. Lovelace ran to the front of the median, i.e., the forward left fender of her car and ordered her to cease this activity. She then moved forward and he again continued his police commands. She then ran into his bike and took a sharp left turn into Lovelace, leaving approximately 29 feet of rubber. Lovelace believed he was being compressed into the building and the planter and unfortunately decided he had to shoot to stop this lethal threat. He aimed for center mass and fired. Nelson was killed almost instantly and her car decelerated to a approximately 5 miles per hour where Officer Marty Thompson’s arriving vehicle came in contact with it, fully stopping it. Lovelace raced after the car and called in “shot fired, run medics, one shot to the chest”. Then Lovelace opened the door to remove Nelson to perform CPR, he noticed that his shot had not entered her chest but actually had entered slightly to the rear of her upper left arm.

Maricopa County Attorney, Rick Romley, came to the hasty conclusion that this was a “bad shoot” and hired an outside ballistics expert. This expert was given misinformation and came to the erroneous conclusion that Lovelace could not have fired the shot as he had relayed it (Lovelace had given a thorough taped interview on the evening of October 11, 2001 and had conducted a taped walk-through with the other officers).

Romley went to the Grand Jury, obtained an indictment and arrested Officer Lovelace. An hour or so later he held a full press conference telling the public of what a fabulous job he had done for this community.

Fortunately for Lovelace, he was a member of the Chandler Law Enforcement Association, which had an agreement with the Legal Defense Fund to defend officers accused of crimes while on duty. LDF retained our office to represent Lovelace. Our first tactic was to point out to the judge what a slanted/faulty job the prosecution had done in presenting their case to the Grand Jury. The trial court agreed and remanded the case, ordering that the county attorney hold a second grand jury investigation. The county attorney did so and the second grand jury refused to indict.

Romley was not satisfied with that conclusion and filed direct information with the trial court, again charging Officer Lovelace with second-degree murder. A jury trial was commenced in May 2004 and a verdict was rendered on July 9, 2004, acquitting Lovelace of second-degree murder and the lesser-included offense that the prosecution had requested of manslaughter. He was also acquitted of endangerment as Nelson had her 18-month-old son in the backseat of her car. To mount this defense, the Legal Defense Fund authorized our office to hire the necessary experts. Without them a viable defense would have been virtually impossible. We were allowed to hire and have testify at trial the following experts:

Dr. Elizabeth Loftus, a world-renown expert on eye witness testimony and memory. Dr. Loftus has written numerous books and articles on the fallibility of memory for over 30 years.

Dr. Vincent DiMaio, the chief medical examiner of Bexar County, San Antonio, Texas and the author of Gunshot Wounds, the bible in that area.

Dr. William Lewinski, an expert in biomechanics and a behavioral scientist that focuses on police performance in lethal force encounters.

Dr. Paul Michel, a forensic optometrist providing expert opinions and legal testimony regarding human vision.

Tim Pebler, an accident re-constructionist. A former Arizona Highway patrolman who had left the patrol to attend engineering school and then devote the rest of his career to accident reconstruction.

Mike Bumcrot, a retired Los Angeles Sheriff’s detective who has investigated over 100 officer involved shootings and has 34 years of police service, 22 in the homicide bureau.

Jan Spaeth, a jury consultant expert who was able to allow us to conduct jury focus groups and to help in jury selection.

Atheia Hardt, a media consultant.

The jury deliberated for 2¾ days before reaching their unanimous verdict. In addition, the two alternate jurors let us know that they also would have voted not guilty.

The atmosphere in police shootings is becoming more and more hostile. Clearly this case had political overtones. The high publicity makes it even more difficult to defend as the media typically takes a slant against the officer. The prosecution tried to take a situation that developed in seconds and analyze in detail why things went “wrong”. As U.S. Supreme Court Justice Oliver Wendell Holmes stated 63 years ago, “Detached reflection cannot be demanded in the presence of an uplifted knife.” This was a hard fought victory and without the help and support of LDF, the outcome may well have been different.

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