Jury Hangs on Excessive Force Charge Against San Bernardino Deputy

Posted on Thursday, June 01, 2017 at 12:00AM

Founding Partner
Castillo Harper, APC

After an extensive and dangerous vehicle, foot and horse pursuit of a wanted suspect on April 9, 2015, former San Bernardino Sheriff’s Deputy Micheal Phelps, along with two other deputies, Nicholas Downey and Charles Foster, were charged by the San Bernardino District Attorney’s Office with a felony violation of Penal Code Section 149, assault under the color of authority. Specific to Deputy Phelps, the prosecutor alleged that after Phelps’ ineffective tasing of the suspect, his kick to the suspect’s groin was unreasonable and without legal necessity.
The case received national attention after news helicopter footage of the horse pursuit and then the contact of the suspect by deputies was broadcast live. Some 10 deputies were involved in the hands-on capture and arrest of the suspect, although only the three aforementioned deputies were charged with excessive force.
Phelps was represented by attorneys from Castillo Harper, APC, to include partner Kasey Castillo, who conducted Phelps’ defense in trial. Initially estimated to last one month, the trial before the Honorable Dwight Moore in San Bernardino Superior Court lasted two full months, despite the jury hearing the testimony of only three witnesses in total, two of whom were called by the defense.
Central to the prosecution’s case was the news footage, advocated as the “be-all, end-all” evidence necessary to render a guilty verdict. Indeed, the prosecutor only called one of the two case agents who collected evidence to testify.
The defense utilized the services of a video expert to highlight the important details of the case displayed in the bird’s-eye view of the contact. The defense presented the jury with zoomed and focused portions of the high-definition video. Although the video was never going to show the perspective of the deputies on the scene, it did show the contact (or lack thereof) by Deputy Phelps, and just how fast the deputies were forced to make split-second decisions on force options. In terms of witnesses, the defense called a use-of-force expert, former San Bernardino Undersheriff Robert Fonzi, who testified to the specific training of the San Bernardino deputy sheriffs, as he was responsible in large part for the drafting of the policy himself. An observer in the CHP patrol helicopter was also called to give her observations of the suspect and his aggressive will to evade deputies as they attempted to detain him after the high-speed, wrong-way vehicle pursuit; ensuing foot pursuit into the remote, desert hills; and the horse theft and subsequent horse pursuit. She also testified on the need to rescue numerous deputies who never made it to the arrest location, as they suffered from dehydration and exhaustion and had to be airlifted out.
Defense-presented dispatch audio revealed that Deputy Phelps requested information on the suspect and was told that the suspect had outstanding in-county warrants and prior arrests for misdemeanor (twice), and felony arrests for resisting arrest, reckless driving and abuse. Deputy Phelps was also made aware of the extreme measures and resources  — in excess of 50 law enforcement personnel — and their attempts to catch the fleeing felon. Through dispatch audio from the Victor Valley and Twin Peaks channels, and testimony from the case agent, the defense presented evidence that Deputy Phelps had to hike more than 1.5 miles down the mountain from the Twin Peaks Station into the desert, in full 25- to 30-pound uniform, to try to pinpoint the location of the suspect. Other deputies were helicoptered in.  
According to the evidence, Deputy Phelps, and Deputy Downey soon after, came upon the suspect in the desert. As he moved toward the suspect, a sheriff’s helicopter knocked both Phelps and the suspect to the ground (the suspect actually fell off the horse). Deputy Phelps recovered and approached the suspect, deploying his Taser. It was clear that the deployment was ineffective, and the suspect made several movements as if to flee, yet again. Fonzi testified that it was reasonable that a San Bernardino deputy like Phelps, based on his training and experience, would believe that a suspect who had already fled would continue to look for his next escape route. He testified that it was also reasonable, based their training and experience, that San Bernardino deputies who had knowledge of a suspect’s violent and resistive priors would believe that a suspect’s actions (like those in this case) were indicative of someone who would not hesitate to fight with arresting deputies.
After the Taser deployment proved ineffective, Deputy Phelps switched to another intermediate use of force, attempting to deliver a kick to the suspect’s inner thigh to distract him and prevent him from getting up. While the prosecution vigorously argued that Phelps had, in a “cheap shot,” kicked the suspect in the groin, thus making the kick unreasonable and excessive, Attorney Castillo played a recorded jail call from the suspect to his then girlfriend two days after the arrest, wherein he stated that he had never been kicked in the groin. This was not surprise evidence — and despite the recorded statement from the suspect to the contrary, the prosecutor continued to argue the offensive groin kick to the jury. Additionally, after in-depth video analysis, the defense was able to show and argue that the uphill kick never landed on the suspect, and instead hit the dirt. It was further highlighted that after the missed kick, Deputy Phelps went immediately down on the suspect’s moving leg, pinning him down until he was able to cuff the suspect himself.
As if a notorious horse pursuit case wasn’t crazy enough, the prosecution’s antics in this trial added to the circus. Instead of presenting the evidence and letting the jury decide the merits of the case, the prosecutor employed the tactic of attacking his own witness — one of the case agents — accusing him of co-worker bias and a poor investigation. Such arguments were baseless. He further argued that the investigation was “whitewashed” by the San Bernardino Sheriff’s Department “machine,” which engaged in a “code of silence” to further its “culture of violence.” He additionally went against more than one court order to present his case and argue his closing, relying on inflammatory tactics and societal pressure to garner convictions. Immediately after his closing argument, the San Bernardino County District Attorney issued a statement apologizing and separating himself from the trial prosecutor’s arguments. An apology to the deputies of the Sheriff’s Department from the trial prosecutor came shortly thereafter, but of course, this was during jury deliberations, and the arguments had already been made.
Despite the extraordinary efforts to inflame them, in the end, the prosecution could not convince the entirety of the jury that Deputy Phelps utilized unreasonable or unnecessary force against the suspect. The jury hung, 8–4, in favor of guilt on Deputy Phelps and Deputy Downey, and rendered a guilty verdict on Deputy Foster. In speaking with the jurors, the four who voted not guilty were steadfast in their belief that Phelps acted reasonably and within the scope of his duties. 
Immediately after the mistrial, the San Bernardino District Attorney’s Office offered a dramatically reduced plea to a misdemeanor — disturbing the peace, loud noise. Phelps pled no contest and is now focusing on moving forward, putting the criminal case behind him. Michael Phelps is grateful to his attorneys at Castillo Harper, APC for their hard work and unwavering faith in him and this case. He is also appreciative of PORAC LDF for its support and legal assistance during this almost two-year ordeal.

About the Author
Kasey A. Castillo is the partner in charge of the Criminal Defense and Administrative divisions at Castillo Harper, APC. She handles the criminal defense of peace officers, including those facing state and federal prosecution, and criminal and civil grand juries. Kasey is part of the firm’s Critical Incident Response Team, and often responds to officer-involved shootings, major uses of force, and in-custody deaths. Kasey also represents numerous police and fire associations as general counsel, to include the areas of grievance arbitrations, policy negotiations and Brady appeals. 

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