When Los Angeles County Sheriffs Commander Charles Heal testified last summer as an expert witness in an Inglewood videotaped police-assault case, he was reluctant and it showed. Heal testified that he would not have charged police Officer Jeremy Morse for slamming a teenagers head into the hood of a car, and suggested that police should have handled the matter internally.
Despite a widely seen videotape of the July 6, 2002, incident, Heals testimony hit the courtroom with a thud. Prosecutors had just broken the cardinal rule of jury trials always know what your own witness will say. How can you get a jury to believe in your case when your own witness doesnt believe in it? asks veteran Los Angeles criminal defense attorney Robert Berke. The jury ended up in a 7-5 deadlock.
Now Heal will get a chance to do it all over again. Legal observers are wondering what District Attorney Steve Cooley has in store for Morses retrial, with the shock of the Inglewood videotape worn off. Heal, who is under subpoena to testify, is wondering too. Im surprised to be recalled, he says. I didnt please [prosecutors] the first time around. I have no idea how they will handle the retrial. Jury selection began Monday.
When the D.A.s own witness went against his case, everyone was shocked, Cynthia Anderson-Barker, who specializes in police misconduct cases, says. What a screw-up. It shows why [local] prosecutors should not be prosecuting [local] cops. They dont know how to do it.
Before his run-in with 16-year-old Donovan Jackson, Morse had been the subject of 11 excessive-force complaints in a 31-month period, according to court papers. None resulted in disciplinary action. One was an October 2001 incident in which he entered the home of Patricia Surjue and allegedly shoved her down the stairs. A federal judge ordered the city of Inglewood to pay Surjue $470,000 last October, after finding that Morse entered the house illegally and used unnecessary force.
Most agree that a retrial of Morse is politically unavoidable for Cooley, yet opinions vary on what it will take to win a conviction of a police officer the second time around. Even if prosecutors dont recall Heal, defense attorneys could call him to undercut the states case, says criminal defense expert Ira Salzman, who has defended police officers. And [prosecutors] need to avoid relying too heavily on the videotape, Salzman says, because it is not three-dimensional and it doesnt show a jury how things looked from the officers perspective.
Last July, prosecutors called Heal to opine that Morse used excessive force in subduing Jackson, who allegedly grabbed the officers testicles in resisting arrest. Heal says he was fresh off a plane from Iraq, where he had pulled a seven-month stint in the U.S. Marines as a reservist, and had little time to prepare. But the prosecutors knew what I was going to say. Its not like they are buffoons, Heal says of deputy district attorneys Michael Pettersen and Max Huntsman.
You can shop around all you want. Youll still have a tough time finding a real expert to say anything different than what I said.
While the jury deadlocked on whether Morse used excessive force, they acquitted his partner, Inglewood Officer Bijan Darvish, on charges of filing a false police report. Morse was fired. Darvish, who according to court papers had been the subject of five complaints in a 26-month period before the Jackson incident, none of them resulting in discipline, remains on the Inglewood force.
Salzman says that prosecutors made a mistake at the first trial by not pressing a harder case against Darvish. When one case is weaker than the other, its hard to separate the two in the eyes of a jury, he says. Darvish could better serve his former partner as a defense witness in the retrial, Salzman adds, particularly if he saw Morse was in danger.
But veteran defense attorney and former police officer Everett Bobbitt sees a bigger problem. Typically a D.A. will devote resources and top people for excessive force cases, but lack of experience is a problem, says Bobbitt, who has won acquittals for 29 of 30 officers accused of misconduct. He too points to Heals testimony as a prime example of failing to distinguish the trial of a police officer from an ordinary criminal trial. Id expect prosecutors to learn from their mistakes, but I doubt they did.
Deputy District Attorney Huntsman would not confirm whether he intends to call Heal as an expert witness. And he challenged the perception that Heals testimony sunk the first Morse trial. Depends on who you talk to, Huntsman says. I might have talked to a juror or two afterwards who had a different impression.
Yet the 12-year veteran prosecutor, who has handled few police misconduct cases, concedes he has an uphill struggle. People want to acquit cops, he says. Its the same case, same set of facts.
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Im sure they are re-thinking their strategy, but what kind of attitude is that if you want to win? Anderson-Barker replies, pointing out that the city of Inglewood is spending hundreds of thousands of dollars to defend various civil suits against Morse and Darvish in some instances counter-suing the people who complained they were abused. (According to Anderson-Barker, who represents Surjue, the city of Inglewood has yet to pay the settlement reached in October, and is attempting to prevent Surjue from speaking publicly about the case. Inglewood City Attorney Emmerline Foote did not return calls for comment.)
Ive said from the get-go the D.A. doesnt have a good case, Darvishs defense lawyer Corey Glave says of the criminal action against Morse. This was political from the start. The case doesnt get any better.
The case will be pretty much what you saw at the first trial, says Sandi Gibbons, a spokesperson for the district attorneys office. We believe its solid.
Ill review the evidence again, Heal says. Who knows, maybe I missed something.