MIKE STONE, ESQ.
Stone Busailah, LLP
BILL HADDEN, ESQ.
SILVER, HADDEN, SILVER & LEVINE
For Part 1 of this article, please see the December 2015 issue of the PORAC Law Enforcement News.
The Nuances of Video (Continued)
A lack of understanding of the limits of the jail video caused the prosecutors to reject the credibility of witnesses who claimed to have observed Owens’ resistance in the jail immediately prior to and during the altercation. After a series of witnesses described Owens’ various levels of resistance to investigators, prosecutors challenged their integrity when they found insufficient corroboration on the video, notwithstanding that the video did show numerous law enforcement personnel in the jail noticeably reacting to the movement of Owens as if it were a major distraction. The assumption that appears to have been made by the prosecutors was that other law enforcement witnesses were either willing to cover up misconduct by the deputies or didn’t know what they saw, contentions that those witnesses adamantly denied. Without any understanding of the nuances of the video, prosecutors simply assumed that these witnesses were inherently unreliable.
While the limitations of the video could have been strenuously argued to the jury, the old saying “A picture is worth a thousand words” was applicable. The defense sought to provide tangible evidence to question the complete accuracy of the video and retained the support of two outstanding video experts, one of whom, Parris Ward, explained the fundamentals of video to the jury, and the other, David Notowitz, prepared a comparison of 30 frames per second (fps) and 7.5 fps videos side by side, using a video segment from a boxing match. When viewing a brief clip in 30 fps mode, the jury could see that in four video frames, a boxer moved his left hand from a shoulder position and struck his opponent directly in the face, with his left hand then veering off to the side. As shown in 7.5 fps format, starting at the same position, the hand went directly to the side without striking the face at all, the consequence of having three fewer frames. The jury was also directed to focus on the movements of the referee in the ring, which at 30 fps showed him walking normally, but at 7.5 fps made him appear to be kicking something, as prosecutors at times claimed that Deputy Kirsch did. The differences were remarkable. Accordingly, arguments by the prosecution regarding the movements of any persons appearing on the video became suspect. Actions that the government claimed were abrupt, forceful and injurious by the deputies could not be accepted at face value, as the jail video captured only 25% of normal television frames, and the degree of force claimed by the government was inconsistent with the lack of injury to Owens. Moreover, the government’s effort to portray one witness deputy’s innocuous hand movement as an “effort to stop the beating” (which she denied) did not receive any credence with the jury because the evidence showed the video could not be trusted to accurately portray the details of key events beyond a reasonable doubt. One was left with the distinct impression at the end of the second trial that if prosecutors fully understood the limits of the video and recognized common control holds involved in the appropriate use of force, the cases in state and federal court would never have been filed.
Impact of Acquittals on State Charges
In the aftermath of the emphatic rejection by the second jury of the use-of-force charges against both deputies, the question remained: What would happen to the P.C. 149 charges still pending in Santa Barbara Superior Court?
While we often think of multiple trials on the same matter as implicating concerns of “double jeopardy,” the double jeopardy provisions in the state and federal constitutions actually prohibit being placed twice in jeopardy if there has been a conviction or acquittal for the same offense before the same sovereign. Individual states and the federal government are considered to be separate sovereigns that independently have the right to enforce their own laws. Thus, it may be recalled that when Rodney King defendants were acquitted in state court, it did not prevent their prosecution for similar offenses under federal laws. By the same token, absent other statutory or state constitutional authority, a conviction or acquittal under federal laws generally does not prevent prosecution for the same offense under state laws.
However, there is legal authority in California that prevents continued prosecutions in our state after the same “act or omission” has been litigated to an acquittal or a conviction in another state or in the federal system. To wit, Penal Code Section 656 states in full: “Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense.”
The California courts have held where the same physical acts, evidence and statutory elements are the same, as they appear to be here, the prior acquittal is a complete defense to the charge (P v. Comingore  20 Cal.3d 142; P v. Candelaria  139 Cal.App.2d 432).
The defense has recently been advised that the DA’s Office, after careful consideration of all the facts and circumstances, will move to dismiss the state charges in their entirety. A remaining matter regarding Deputy Johnson is still pending in federal court.
Deputy Johnson was represented by Mike Stone, Muna Busailah and Robert Rabe of Stone Busailah, LLP, while Bill Hadden and Ken Yuwiler of Silver, Hadden, Silver & Levine represented Deputy Kirsch. With the powerful support of the Legal Defense Fund, the defense was again able to utilize the talents of Parris Ward of Biomechanics Engineering, Inc., David Notowitz of the National Center for Audio and Video Forensics, use-of-force expert Don Cameron, jury expert Jan Spaeth and Investigator Hank Lobo, who all contributed tremendously to the final outcome.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Christopher Boyd Carlsbad POA
[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
- Scott Hamilton San Bernardino Co SEBA
Don't go to work without LDF!
- Steven Moorehouse Redding POA
Thank you for your help.
- Tamboura Nettingham Claremont Custody Center EA
My representative was an outstanding rep. I was very fortunate to be represented by her and the firm should be very proud to have her in it. She's courteous, smart and aggressive when needed. I would not ask for anyone else, if any other situation evolved, she's the best. Thanks.
- Kevin Hullquist Siskiyou Co. Correctional POA
[My representative] did a good job representing me. Kept me informed.
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Robert Muelberg Denver PPA
I could not have had a better attorney. [My representative ] went way above and beyond his duties. I would not have had a better experience with my representative. I believe that the LDF is the single most important benefit a police officer could have!
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Wendy Morrow Chico Public Safety Association
I had never been through an I.A. in my 21 years. I was scared and ashamed and humiliated. ( My attorney ) was excellent. He helped me through one of the worst times of my life. Had great outcome and I am grateful.
- Cathleen Weldon Siskiyou Correctional POA
Very Comforting to have a knowledgeable person looking out for my best inerests. Thx!
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Christopher Adams Modesto POA
Thank you for all your help!
- Nestor Hernandez San Diego POA
This is a great program designed to protect LEO’s in need
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Chad Sakamoto National City POA
Although this incident was unfounded, it's still stressful. My LDF rep kept me informed and kept "work" at work.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Kim Jasper Alhambra POA
Excellent service, prompt and courteous.
- Dan McDow San Luis Obispo POA
[My representative] is the poster face representative of the greatest attorney (representative) that anyone could possibly ask for. She gets a 12 out of 10 star rating. Nobody works harder.
- Gilbert Garcia Oceanside POA
My attorney provided outstanding representation.
- Matthew Gardner Colorado PPA
I would not want to be an officer without this coverage. It was great to have it and kept my mind at ease.
- Scott Muir Tracy POA
Very satisfied with the service I was given.
- Derwin Longmire Oakland POA
Outstanding [law firm] - incredible firm. And, LDF was easy to work and correspond with.
- Ken Burbank Shasta Co DSA
[ My representative ] was professional, articulate and prepared, but most importantly he understood the emotional impact the investigation was having on me as a person and peace officer. I highly recommend [my representative].
- Jon Seabron Oceanside POA
[My Representative] was the best and if I ever need to call al lawyer again for anything, I'll be calling her.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- Jack Ellis Lompoc POA
An excellent plan. Very valuable to its members.
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- Katherine Comesana Mountain View POA
Hope to never in a situation again, however, glad to know that LDF is there to help.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- Eric Olson Escondido POA
You guys did an amazing job! Thank you L.D.F. !
- Nick Bannister Phoenix LEA
I was extremely grateful for professional representation provided by ( my attorney ) during this extremely stressful situation
- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Steven Moorehouse Redding POA
You guys are Great! Very professional and well informed. THANK YOU!
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- Tyler Robins Pasadena City College POA
At a time when no one cares about you it's nice to have someone on your side who does. (My attorney ) made a stressful six months a lot more tolerable.
- William Jackson Santa Maria POA
Keep up the great work.
- Joe Charvez Santa Clara Co DSA
I could not be happier with the interest, work put into my case, and assistance from [my representative]. Thanks !!
- Jeff Stanley Upland POA
Excellent representation. [My representative] is a great attorney.
- Rodney Kirkland Oakland POA
Being a police officer in the city of Oakland, I appreciate the services that are offered.
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Christine Farmer Tehama Co DSA
Mine was a fairly simple situation and I may not have needed representative. I am glad I called for help, it gave me peace of mind and reassurance.
- James F. Beland Lake County SDA
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- Andrew J. Brice Santa Maria POA
As always... an excellent result.
- Nancy Page Aurora PA
I didn't end up needing his service but he was awesome in what conversations we had before the matter was resolved. Very valuable - LDF!
- John M. Laser Oceanside POA
[My representative] always took my calls or returned them within hours. Put my mind at ease and kept me well informed. LDF is well served by this law firm!
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Martha Tschetter Carson City Sheriffs PA
The LDF process was painless and I was able to get immediate representation in an urgent time of need. Thank you LDF
- Gregory Carbett Ontario POA
The attorney assigned to my case was GREAT! It's sad, but it's impossible to be an officer in today's world without a defense fund like PORAC LDF. I am now retired and signed up for the retired officers CCW LDF. Thanks!