DA’s Office Keeps Mum On Circumstances Leading To Last Minute Decision To Charge; Defense Attorney For One Officer Calls Decision “A Blatantly Political Prosecution”
By Larry Freeman
The Alameda County District Attorney’s Communications Bureau (ACDACB ) said in an email that “the three (Alameda Police Officer) defendants are scheduled to be arraigned on May 30, 2024, at 9 AM, Wiley Manuel Courthouse Dept 112, Oakland,” adding that all are currently out of custody.
Allison Berry Wilkinson, Defense Counsel for Officer Cameron Leahy challenged the legitimacy of the arraignment and pursuit of the case in a prior email interview with ANN, saying that “There is no new evidence or changed facts. Just changed opinions. It is my understanding the District Attorney provided the same evidence previously accumulated to a different expert who opined about the force used.”
Berry Wilkinson is no stranger to the case, having represented all three officers, Cameron Leahy, Erik McKinley and James Fisher in the previous criminal investigation and administrative inquiry into the in custody death of Mario Gonzales on April 19th of 2023.
All prior examinations and inquiries into the matter found insufficient grounds to prosecute the officers for Gonzales’ death as a result of the officers’ handling of the matter, marking a major turn of events to now pursue involuntary manslaughter charges as announced by Alameda County DA Pamela Price in April of this year.
(for more detail on this aspect of the case, prior investigations, findings etc. please click on the link here:
In the apparent absence of any new facts or findings in the matter, Berry Wilkinson suggested that Alameda County’s District Attorney Pamela Price’s eleventh hour decision was motivated by other factors than a new interpretation of established evidence and a campaign promise from 2022.
“The District Attorney waited until just hours before the statute of limitations was set to expire to bring these charges just days after it was confirmed she would face recall,” she asserted.
Certification by the Alameda County Registrar of Voters of a petition seeking voter recall of Price took place on April 15th and Price’s announcement that she and her Public Accountability Unit (PAU) decided to bring the charges was announced on the evening of April 18th, just three days later. The statute of limitations allowing charges to be levelled against the officers was set to expire on the next day, April 20th.
It is not clear if or when Price formally directed her PAU to re examine the Gonzalez case, though a Press Release from January 31, 2023 announcing the creation of the entity stated that “the death of Mario Gonzalez, who died in custody of the Alameda Police Department in 2021, will also be reopened.”
The Press Release also notes the time imperatives of the statute of limitations when it comes to involuntary manslaughter cases as this one. “For involuntary manslaughter (Penal Code 192) the prosecution only has three years to prosecute. Murder (Penal Code 187) does not have limitations.”
In this case, the clock was only hours away from running out.
The announcement does not say or imply anywhere that the PAU is independent of her control, influence or commentary, though in her April 2024 media announcement she said, “I can’t comment on (reasons underlying the decision nor the evidence) as, “the matter is pending before the court. So the details as to how the PAU came to this decision, particularly ” as to why the unit she created concluded that felony charges were warranted were not disclosed.
— The ACDACB declined to address the timing of Price’s announcement
“It is a decision that I made. It is a technical matter, and I’m not able to speak on it at this time,” she added.
The press release of 2023, regarding transparency, disclosure and case strategy matters, does provide “A note to media: The office will not be making any further comments as these are now pending investigations, “ common parlance when law enforcement, justice related agencies and legal professionals opt to not speak on the record about a case.
The ACDACB declined to address the timing of Price’s announcement, the recall and the impending deadline for the statute of limitations, stating that, “ this case is currently being prosecuted in court. The Alameda County District Attorney’s Office has no comment beyond what is written in the press release and what was stated during the Media Availability. “
That response was consistent with Price’s statement, during the brief press conference announcing the charges, that “the matter is pending before the court. So the details as to how the PAU came to this decision,” could not be revealed.
Berry Wilkinson viewed that statement as more of a legal strategy than a smokescreen, saying that, “ I read that claim as the District Attorney as her way of avoiding another disqualification motion. As you noted in one of your other questions, her comments on other police matters resulted in her being removed from the case(s)..”
The reference to removal, also known as a disqualification ruling following a motion by defense counsel, involved two separate instances where Alameda County Superior Court Judges found that Price’s office lacked impartiality in pursuing charges against police officers and barred her from pursuing the cases.
In a subsequent email, Berry Wilkinson reiterated a statement she made in the SF Chronicle, saying that, “ I anticipate this case will result in either a dismissal after the preliminary hearing or acquittal following trial. I stand by that statement.
Berry Wilkinson professed that a 2022 California law, passed in the wake of Gonzales’ demise, prohibiting officers from using techniques such as prone restraint that “involve a substantial risk of positional asphyxia” a factor in this case, would not be an option available to the prosecution. “The officers should be judged based on the standards in effect on April 19, 2021, not on the standards later enacted,” she said, referring to the Constitutional principle against the use of Ex Post Facto laws.
She also stated that, “I apologize that I am not at liberty to answer all your questions, but have provided that which I can.”
The following are the questions to which she chose not to respond.
* Those in the community that support her, will likely laud the move, in part as she is living up to her campaign agenda and her statements when creating the PAU support that. What is your take?
* The involuntary manslaughter statute involves the key phrase that it is a “lawful act which might produce death….without due caution and circumspection.” Is that they key language on which they will base any upcoming prosecution?
* Do the officer’s actions of repeatedly asking Gonzalez to “please stop resisting us” etc and their general avoidance of using force in trying to get him to comply to be handcuffed and taken into custody act as mitigating circumstance with respect to the charge?
* Do their expressions of concern, ie “does he have a pulse?” their initiation of CPR and immediate call for paramedics act as mitigating circumstance, or are those not relevant since they took place after he lapses into unconsciousness?
Attorneys for the other two officers did not go on record regarding the case, at this point.
Julia Fox, counsel for Officer Fisher agreed to speak on the matter, but follow ups did not pan out and attorney James Shore, counsel for officer Fisher, did not respond to multiple phone calls and emails seeking comment over the course of several weeks.
The ACDACB chose not to respond to the following questions, as is their prerogative and right.
* Did the PAU or any other entity, to your knowledge, come across any new evidence that would support the decision to charge ?
* Also, did the PAU or DA’s office in general assign a different person(s) to review the evidence, be it new or old, in the case than the original person(s) ? Please provide name(s) and other details of those in charge of “the extensive review” that DA Price alluded to in her press conference.
* When was this latest review undertaken and how long did it take?
* Those in the community that support Ms Price , will likely laud the move, in part as she is living up to her campaign agenda and her statements when creating the PAU support that. What is your take?
* The involuntary manslaughter statute involves the key phrase that it is a “lawful act which might produce death….without due caution and circumspection.” Is that they key language on which prosecutors will base any upcoming prosecution?
* The officers repeatedly asked Mr. Gonzalez to “please stop fighting us” etc. After he is pinned for the three minutes or so they utter expressions of concern, ie “does he have a pulse?” and initiate CPR and soon thereafter call for paramedics.
* Do these actions, as a matter of law, act as mitigating circumstances, or are those not relevant since they took place after he lapses into unconsciousness?
* In 2022 California enacted legislation that prohibits officers from using techniques such as prone restraint that “involve a substantial risk of positional asphyxia”. (Mr Gonzalez’s tragic demise contributed to that)
* Of what legal relevance to this case is that standard –sensible though it may be—given that this incident took place in 2021? Does the absence of such a standard at the time of the fatal encounter pose a hurdle for your prosecutors?
* Might it still have an influence on how a jury sees things, if the matter goes to trial?
* What is your take on Ms Price’s press conference statement that “ I can’t comment on (reasons underlying the decision nor the evidence since) “the matter is pending before the court. So the details as to how the PAU came to this decision,” can’t be revealed.
* Do not DA’s have the prerogative to be much more forthcoming than that, as illustrated, for example by your office’s press releases in past occasions that were highly detailed in terms of incriminating evidence against police officers facing prosecution?
* To your mind, is this decision politically motivated, or strategically timed and designed to help Ms Price offset or take the focus off of two prior judicial findings regarding case bias, and to take the spotlight off of the recently authorized recall vote or any other motives outside of “trying to rebuild a system that has not always been fair to folks”?
* What is the D A Office’s stance on the propriety of those “bias” rulings?
* Can you elaborate on if/how those rulings might have factored in to this latest decision?
* Please provide anything else you would like to say.