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Custody Deputies Acquitted of Excessive Force Charges, Part 2

Posted on Monday, January 04, 2016 at 12:00AM

MIKE STONE, ESQ.
Partner
Stone Busailah, LLP
BILL HADDEN, ESQ.
Partner
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 [1977] 20 Cal.3d 142; P v. Candelaria [1956] 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.