Case Results

Stabbing with Great Bodily Injury Jury Trial November 2016 NOT GUILTY VERDICT (C1501360)

I represented a young man named Jesse. He was accused of slicing the cheek of his girlfriend’s ex-boyfriend in a fight that occurred at a bar in San Jose, California. Jesse was also initially charged with shooting a second person in the parking lot of the bar. The assault with a deadly weapon and great bodily injury upon the second “victim” was dismissed at the Preliminary Examination as there was no evidence connecting Jesse to the shooting and by all accounts Jesse and his girlfriend, Nina, had driven off prior to the shooting. The judge would not allow evidence of the subsequent shooting not connected to my client into evidence as evidence that there were others with a motive to harm the alleged victims.
There were many inconsistent statements made by the victim, Beltran, and by his brother, Serrano. Both accused Jesse without claiming to have seen him cut Mr. Beltran in the face. Nina lied to the police and said that she was NOT with Jesse at the bar that night. She said that she and another unnamed man, entered the bar that night. The victim’s brother, Mr. Serrano, confronted her and the man she was with that night. She said that her ex-boyfriend, Mr. Beltran, is always causing “drama,” and that he and his friends, surrounded the man she was with and the armed Bouncer, escorted them both out of the club to the parking lot and she left. She told the investigating officer that she drove off and nothing happened.
The investigating officer had seen the cut on her ex-boyfriend’s face at the hospital. He accused her of lying. At the trial, she admitted she lied to protect Jesse. They were escorted by the Bouncer to the parking lot. She and Jesse talked to the Bouncer until he got a call on his walkie talkie and they got into her car and she drove them home.
We located and interviewed the armed Bouncer, whose name was Dante. He confirmed Nina’s statement. Jesse was surrounded by a group, who had been drinking all night, bottle service of Hennessey Brandy with 3 to 5 bottles for a table of 8. Dante testified that he grabbed Jesse and escorted him to the front of the bar. Jesse asked why he was being kicked out when clearly the others were the aggressors. Dante told Jesse that he just “saved” Jesse’s life and that Jesse should be thanking him. Dante said that he talked to Jesse and to Nina, when he received a radio call that, “All hell broke loose” inside the bar.

My investigator also located and interviewed the bartender, Rachael, who confirmed the details of the testimony of the Bouncer, Dante. A major fight had broken out in the bar. There were people everywhere. Chairs were being thrown. The bar owner discharged a mace bomb. Dante was pepper-sprayed in the face by a woman, when he tried to subdue her boyfriend. Everybody headed for the exits to the bar. Mr. Beltran said that is when Jesse returned to the bar and sliced his face, although he did not see the person who cut his face. Mr. Beltran’s brother Mr. Serrano, said that he saw Jesse hanging over the alleged victim but did NOT actually see Jesse cut his brother. The District Attorney only called Mr. Beltran and his brother and the investigating officers. The case was really about their inconsistent statements throughout the jury trial.

I began closing the argument with the lie. THERE IS NO QUESTION that (Nina) lied to protect Jesse. SHE IS A TERRIBLE LIAR. Officer Castillo, questioned Nina; This is the night that, um, Miles got stabbed. Nina immediately said, “Miles did NOT get stabbed. The officer said, “He did get stabbed, I saw him. I went to the hospital. Nina says, “I don’t know. I don’t know. I don’t know anything at all.” Officer Castillo tells her that it is in her best interest to be honest and “Just tell me your side of things because there are two sides to every story.”
Nina says, “Yes, I know that. And, Miles has been claiming a lot of things because he is mad that I got with him [Jesse].
BUT OFFICER CASTILLO DOES NOT LISTEN TO HER SIDE OF THE STORY. He cuts her off and says, “And, uh, what we’re talking about is the night that he got stabbed.” Nina says, “Okay, well, I don’t know anything about that.” Later she says, “Whenever anything happened, I was not there.” Basically, she says, “nothing happened. She went to the club. Mr. Beltran created some drama. They left and nothing happened.
DO ANY OF THE JURY MEMBERS REMEMBER ME ASKING A QUESTION TO ONE OF YOU WHO IS AN ENGINEER? What is the problem when someone sets out to prove what he or she already believes to be true?
Officer Castillo begins with the premise that Beltran was cut in the face and he sets out to prove that Nina and Jesse were both there. He will not listen to what she has to say about the ex-boyfriend, who sent her nasty text messages threatening to kill her and Jesse. Officer Castillo doesn’t listen to her when she is saying that she and Mr. Beltran are going through a custody battle.
When all you know is that Jesse did not cut Mr. Beltran’s face and that she and Jesse left, then, NOTHING HAPPENED.
INDEED, MR. BELTRAN’S FACE WAS CUT FROM HIS EAR TO THE CORNER OF HIS MOUTH. But he was very drunk. He never saw who cut him. Nina and Jesse were there for a short time and had left. And, Mr. Beltran wanted to blame somebody.
The jury returned a NOT GUILTY verdict.

Gross Vehicular Manslaughter, Jury Trial April 2017

I represented a young client, who was attending Evergreen Valley College, located at the top of the hill on Yerba Buena Avenue in San Jose, California. He was on his way down Yerba Buena Avenue on the first day of school on January 26, 2015 when his car was struck by car driven by another EVC student. The two vehicles skid across the road, jumped a curb, hit a guard rail on the West side of the street. My client’s car came to rest a few feet from the guard rail. The other vehicle hit a large Redwood tree. The back end of that vehicle swung around and hit a 15,000-pound ATT service truck and moved it three feet forward.

When emergency personnel pulled the other driver’s vehicle away from the large Redwood tree they found the body of a young woman crushed between the vehicle and tree.
Witnesses told police that it appeared that the drivers of the vehicles were racing down Yerba Buena Avenue. Both drivers were arrested and charged with felony violation of Gross Vehicular Manslaughter. My client gave a statement. He was not racing. He saw the other vehicle being driven very fast and lost control as it passed by his vehicle, striking him causing them both to skid onto the sidewalk. At the time of their interviews, neither young man knew that the police had found the dead pedestrian.

My client passed a polygraph test administered by one of America’s foremost polygraph experts, Ronald Hilley. My client was NOT racing at the time of the accident or immediately prior to the accident. The District Attorney’s office was provided a video copy of the polygraph and the report and continued the prosecution in spite of the polygraph test results.
I hired Accident Reconstruction Expert, Chris Kauderer, who examined the “skid marks” left by both vehicles and using measurements of the centrifugal tire marks, the weight of the vehicles and the damage of the vehicles and the guard rail, determined that my client was traveling approximately 42 miles per hour in a 40 m.p.h. speed zone at the time that he was struck by the other vehicle. By the same methodology, he determined that the speed of the other vehicle was approximately 72 m.p.h. at the time that the vehicle lost control and began the long skid, followed by first striking the guard rail, then hitting the redwood tree and moving the ATT Service Truck three feet and coming to rest. The DA’s accident reconstruction agreed with the calculations of Defense Expert, Chris Kauderer.

We were able to keep out the statement of witnesses that the drivers of both vehicles were racing as speculation and beyond lay witness’ qualifications to testify and prejudicial to my client. Although, the District Attorney tried to argue that the two drivers were racing, her argument was not supported by any admissible evidence. The jury found my client NOT GUILTY.

Murder Case Information # 199950 Creation of Forensic Animation as Demonstrative Evidence leading to acquittal.

Steven Nakano was the first lawyer in Santa Clara County to use a Computer Generated Forensic Reconstruction of a shooting-based upon the bullet paths from the autopsy report to successfully defend a client charged with MURDER. He proved that his client acted in Self Defense.

I was hired by the family of Shanandoha Garcia, who was charged with first-degree murder. The District Attorney tried the case as a “drive-by” shooting in the death of Brian Fatuofafe on Superbowl Sunday 1997. My client had no prior criminal history. In fact, most of his claim to fame at that time was that the played soccer on the U.S. International Soccer Team. He would have played in the 1980 Moscow Olympics, had we not boycotted those Olympics.

Shanandoha had come home and was working in Silicon Valley and “moonlighting” at a bar in downtown San Jose. Shanandoha was invited to a friend’s home on Superbowl Sunday when the house received a phone call from a person unknown to Shanandoha, who was friends with the persons hosting the Superbowl party. The caller informed the people at the party that he had been jumped by several Samoan Gang Members at the Golden Nugget Pizza Restaurant. He was asking that his friends pick him up. Shanandoha drove his friends to the Golden Nugget to meet the caller. The caller was excited when they arrived and ran around the block to the home of a known Samoan Gang member. He yelled outside the home of the known gang member and challenged to fight “one on one.” Gang Members flooded out of the home and while my client and his friends were yelling to let them fight “one on one,” surrounded my client’s lowered 1980 Ford Thunderbird.

Brian Fatoafafe brandished a roofing hammer and struck Shanandoha on the left side of the cheek, while he sat in the driver’s seat. At the same time, the passenger of his T-Bird was struck in the face with a 40 oz beer bottle. The only person not injured was the person seated in the back seat. The passenger dropped a loaded weapon onto the console when he was struck in the face with the beer bottle. Brian Fatoafafe was 6 foot 3 inches and 305 pounds. He tried to pull Shanandoha out of the driver's side window. Fortunately, he was strapped in by his seat belt. The engine was still running. Fataofafe tried to grab the keys from the ignition. Shanandoha grabbed the loaded firearm from the console and fired the weapon 3 times in rapid succession. Each bullet struck Fatoafafe, who recoiled from the force of the bullet. My client told me about the sequence of events.

Fortunately, the autopsy report was consistent with my client’s story as to the sequence of the bullet shots. First, I hired an expert in Forensic Science to analyze the bullet paths and whether the bullet paths were consistent with my client’s version of the facts. My client said that Fatoafafe had bent over at the waist and reached into the lowered Ford Thunderbird. There was a bullet that struck him just below the armpit of his left side. The bullet path traveled in a 45-degree angle from his left to his right and 10 degrees forward to back. I suspected that this was the first shot. This show would have had caused him to recoil around and begin to drop. The second bullet entered just below his jaw at a downward angle and coming to rest across his neck. The third bullet struck him in his collar bone and deflected up slightly. Dr. Thornton ran several simulations and agreed to this bullet sequence as consistent with the transfer of power of the bullets as each struck the decedent.

Next, I asked Dr. Thornton about presenting a model for the jury to visualize the attack and the subsequent shooting. He showed me several styrofoam models and dowels that he had previously used. They were entirely inadequate. I wanted the model to represent a 6 foot 3 inch, 305-pound assailant looking in through a driver side window. I told him that I wanted a body of a 1980 lowered Ford Thunderbird if we had to bring it into the court. I asked him if he had computer-assisted design programs and if he could create a computerized image. Dr. Thornton said he did and said he could create a model within 3 weeks. I agreed. Three weeks later I returned to see what Dr. Thornton had done. What he had done was a limited wire cage image within a computer simulation. I said that my friend across the hall could have done that in 10 minutes!

So, I scheduled an appointment with QB White, my friend from across the hall. QBWhite@LAD.com (Light Assisted Design). I showed QB a photo of the deceased Brian Fatoafafe lying on the coroner’s table. He measured 6 foot 3 inches in height and 305 lbs. He had a large Polynesian Body with a large extended torso and relatively short sturdy legs and a goatee beard. I asked QB if he could build a wire-cage frame over the body, and then lift the image up and to the left of the photograph. Then, I asked if he could create a lifelike image with skin and clothing and then fade out the image of Fataoafafe on the right. He listened and said, “That will be easy.” Then, I asked him if he could measure the point of entrance of each bullet and trace the bullet path with a brightly colored line along the bullet path exactly as described in the autopsy report. He nodded yes. Then, I asked if he could make the image walk up to a person sitting in a 1980 Ford Thunderbird, make a slashing motion across the face of the driver and then lean in and reach across the driver with his left hand and be shot three times in rapid succession and recoil with each shot as described in the autopsy report.

QB White did all that I asked and more. He obtained an exact image of the 1980 Ford Thunderbird. He went out to the police salvage yard to measure every height and inch of the car because it had been “lowered” from factory standards. I asked him to make sure that the persons and the vehicle were in exacting proportions to one another. Once he finished the model, I asked him to give me top views, side views, and front and back views of our Computerized image of Fatoafafe with the exact language describing the bullet paths from the autopsy report. I asked him to print the images onto large posters mounted onto large foam core. These still images were used in the jury trial to question the coroner and to establish a foundation for the admissibility of each still poster and eventually to lay a foundation for the admission of the video as “Demonstrative Evidence.”

This type of technology had never been attempted before in Santa Clara County. QB White was called as a Computer Expert, working under the direction of Dr. Thornton and on behalf of the defense. The District Attorney cross-examined Dr. Thornton and had to cross-examine QB White. First, he questioned Mr. White about the scientific accuracy of the computer model. The cross-examination and the “re-direct” testimony was done while QB was working from a laptop computer that was attached to a large screen TV, acting as a computer screen. QB was able to de-construct the image from the skin and clothed back to the wireframe. He was able to mark a point on the top of the model’s head and drop a line down exactly 11 inches down and 2 inches to the right and mark a spot. When asked how accurate that measurement was, QB said that it could be accurate to 1/1000th of an inch. Beyond that, he said, we could not detect the difference unless we magnified the image. When asked about the accuracy of the angles of the bullet paths, he also answered that he could determine this to 1/1000th of a degree. He then demonstrated that once the bullet paths were marked by brightly colored lines, that he could manipulate the image of Fataofafe in 3-dimensional space and the bullet paths remained in exacting relative position.
Once the poster images and the video was marked and admitted into evidence, the jury was allowed to take the evidence into the jury room during jury deliberations. In all fairness, the first jury hung 6 to 6. It was an evenly split jury. I believe that the jury was split because the DA argued that the expert witness, Dr. Thornsen, only did my bidding. He read a letter between myself and Dr. Thornsen to the jury exposing my theory of the shooting early in the process. I believe that the judge should NOT have allowed this as Attorney Work Product and NOT relevant to Dr. Thornsen’s testimony.

A public defender was appointed for the second case. He was urged to settle the case for an 11-year offer from the Court and the District Attorney. In fact, the trial judge for the second trial called me to try to convince the Public Defender and Shanandoha Garcia to plead rather than to risk a life sentence. Instead, I encouraged the public defender to take the case to trial. I asked him, when would you ever be able to use this kind of technical evidence again. Thankfully, he took the case to a jury trial a second time. He did NOT call Shanandoha to testify in the second trial. Instead, he asked the court reporter to read his prior testimony into the record, which kept the DA from cross-examining Shanandoha a second time. Dr. Thornton testified as did QB White. I was called when the jury had a verdict and ran down to the jury room and heard the jury foreperson read, “We the jury in the aforementioned action find the Defendant, Shanandoha NOT GUILTY of the charge of Murder in the First Degree.”

Below is the link to the video used in the jury trials. Interestingly, in 2004, I attended the Capitol Case Convention in Monterey. I was interested and so attended the Technology and the Law session. In it, the presenter from the Alameda County Public Defenders’ office was asked a question about the possible creation of a digital forensic re-creation of a shooting or stabbing “like we see on forensic crime shows.” The speaker said, “Oh, you will never get anything like that admitted into evidence. I approached the organizers of the Seminar and gave the presentation on “The Creation and Use of Forensic Animation as Demonstrative Evidence in Jury Trial” in the following year.

Click to view the Forensic Animation Video

Polygraph (lie detector test) Used to Dismiss Child Molest Case C1347648.

I represented a Spanish speaking client, who was accused of molesting a 6-year-old girl and an 8-year-old boy. The children were his Sister’s stepchildren, my client’s sister’s husband’s children. The biological father of the children divorced the children’s mother and later married my client’s sister. The father and the children lived in a home with my client’s parents and sister. Reportedly, the children accused uncle “Lalo” of sticking his finger up their butts. My client was facing two life sentences for the alleged child molests of children under the age of 10.
I charged a fee to read the police report and to interview the client in custody. I took my friend, who is a court-certified Spanish Language Interpreter, to interview the client in jail. During the initial interview, the client asked me if a jury would believe two young children, who had accused him of molesting them. I told him that DA’s, judges, and jurors “bend over backward to believe children” in cases like his. He put his face into his hands and wept.

I told my client that the children accused him of showing them pornography on his laptop. He told me that a friend had given him a laptop. But, the children knew that he does not even know how to turn on the laptop computer. That was an interesting fact.

I told him that he could take a polygraph test. I had to explain what a polygraph test was. He was excited. He asked, “There is a test that can prove that I am telling the truth?” I told him there is such a test. I also explained through the Spanish Interpreter that a polygraph test is NOT admissible in any evidentiary hearing in the State of California. That is because a polygraph test can “beat you,” but you cannot lie and beat a polygraph. I told him that the polygraph test would be videotaped and that if he passed the test, I would give the test and the test result to the District Attorney. Passing a polygraph test would at least make the District Attorney look at his case more closely.

I engaged Polygraph Expert Ron Hilley. Mr. Hilley was 24 years an FBI Agent and renowned polygraph expert. There are several senior District Attorneys who trust his work. Mr. Hilley tested my client with a Certified Spanish Language Interpreter. My client passed the test with very high marks.

I turned over the polygraph examination video and test results to the District Attorney handling the case. He immediately called me back and asked if he could call the expert, to which I said, “Of course you can. That is why I turned everything over to him. The DA spoke with Mr. Hilley. I then received a second phone call from the DA asking if my client would take a second polygraph test by a Spanish Speaking Polygrapher. I said, “Yes.” And I immediately called Ron Hilley. Ron had recommended a Spanish speaking polygraph examiner, whom Ron had trained years earlier. We flew him up from San Diego to conduct the examination. My client passed the second test.

I advised my client that the District Attorney would NOT simply give up and say, “You win.” But, he would have to question whether or not he was prosecuting an innocent man of charges that he did not commit. My client was not immediately dismissed. Nor was he released pending the trial.

But, the District Attorney began re-evaluating his case. I pointed out to the DA that the children did NOT speak with the police. It was the children’s biological mother, who had called the police and told the officer that the children had said that my client had shown them pornography. In fact, my client had caught the boy watching pornography and reported this to their father. The boy got into trouble with his father.

In every case where there are false charges there is someone who is crazy. And, it was the mother. She attended many of the court hearings and talked with anybody who would listen. She was pretty crazy. The district attorney tried to speak with the children alone, which she would not allow. He looked closely at how the information about the case was reported. It was she, who made the reports to the police and not the children.

The DA dismissed the case on the day of the preliminary examination. And, my innocent client was released. He was very patient and he was rewarded for his patience. And, I have great respect for the Deputy District Attorney who handled the case.

Judge wipes out wrongful conviction for Foley

Kenneth Wayne Foley’s long road to vindication and justice ended in court Thursday when a wrongful burglary conviction that had cost him more than 11 years in prison was erased with the help of prosecutors and steadfast defense attorneys.

In a hearing that took less than a minute, Judge Ray Cunningham vacated the 1995 convictions Foley stood beside attorneys who crusaded for his release – his original trial attorney Steve Nakano and Linda Starr, of the Northern California Innocence Project – and prosecutor David Angel, who re-investigated the facts and determined Foley was innocent.

“Mr. Foley, you are discharged of this matter,” Cunningham said. “Good luck to you.”

With that, Foley, 38, walked out the court doors, no longer haunted by the conviction.

Asked what he thought the moment Cunningham wiped the conviction off the books, Foley replied: “That it’s finally over. I’ve been so long with it, with the hopeless feeling when you’re inside (prison) … I got my fresh start and I’ll be OK.”

Foley, who was released from prison in September, has been splitting his time between the South Bay and Manteca, where he’s been living with one of his sisters. He currently is a truck driver, but said he hopes to go to college, perhaps to major in business administration.

The re-examination of Foley’s case came in the aftermath of the Mercury News series, “Tainted Trials, Stolen Justice,” which examined questionable conduct by prosecutors, defense attorneys, and judges that led to wrongful convictions.

In 1995, Foley was accused of burglarizing a truck parked at a lot in Campbell.

It started when Mashelle Bullington let a man she only knew as “Luke” use her Pontiac Firebird while trolling for recyclables. Bullington accompanied him but said she fell asleep.

When she awoke, they were at a parking lot in an industrial area of Campbell, and Luke was breaking into a truck owned by Robert Buck, according to Bullington.

Buck, who was inside an office, was awakened by a noise and looked outside a window to see a man rummaging in his truck. He grabbed a .22-caliber revolver, went outside and confronted the burglar.

At that point, Buck would tell authorities he believed Bullington was pointing a gun at him – an allegation she denied. Her account was confirmed by the district attorney’s investigation years later.

Buck let the pair go and reported the incident to police, providing them with the Pontiac’s license plate number.

Police traced the plate to Bullington. Later that day, Foley would borrow the Pontiac and get a citation for making an illegal turn.

Officers learned that Foley had a prior record for burglary. They provided separate photo lineups of Bullington and Foley for Buck, who picked them both out as pair he confronted.

An investigator hired by Nakano eventually identified Luke Gaumond as the actual burglar who was with Bullington.

Despite the possibility, he could be charged with robbery or burglary, Gaumond testified he broke into the truck – not Foley. Gaumond, who was never charged, also said Bullington was not armed.

But Deputy District Attorney Charles Slone went ahead with the prosecution of Foley and a jury returned a verdict of guilty. Foley was sentenced to 25 years to life.

During the trial Slone said he was “physically sickened” by the lies told by the defense and that a “fraud is being perpetrated” on the jury to save Foley from a third strike and a long sentence. The judge found Slone had crossed the line into misconduct at times during final arguments but it did not stop the conviction.

As years passed, a persistent Gaumond contacted Nakano asking what could be done to free Foley. After the publication of the Mercury News series, Nakano called then-Chief Assistant District Attorney Karyn Sinunu, who then assigned Angel to re-examine the case.

Angel’s work cast doubt on the conviction, leading then-District Attorney George Kennedy and Judge James Emerson to write the state Department of Corrections, recommending that Foley be resentenced.

Foley, who by then had been in four state prisons, was released late last year, pending the resentencing. Instead prosecutors dropped the charges at the urging of the Northern California Innocence Project, which filed a writ of habeas corpus asking Cunningham to vacate the conviction because of new evidence.

In court documents, Angel said Buck now acknowledges Bullington did not threaten him with a gun. A person who spoke to Buck shortly after the incident said Buck told him she had “pointed her finger” at Buck.

However, the district attorney’s office said it cannot confirm defense assertions that Slone concealed evidence that would have helped establish Foley’s evidence.

“Mr. Foley spent a long time in prison,” Angel said, “but there is hope and satisfaction in that the system eventually was able to bring the truth to light.”

Gaumond expressed relief Foley is finally clear of the charges.

“I’ve been saying since Day One: It wasn’t Kenny,” Gaumond said.

After the hearing, Foley admitted he still harbors anger over the wrongful conviction, but he is also grateful the district attorney’s office reopened the case.

“This district attorney’s office is pretty honorable and noble because I’m sure a lot of offices around the country would probably sweep this under the rug,” Foley said.

Foley has received congratulations from friends in prison, and also some advice.

“They all just tell me to be good and don’t come back,” he said. “It’s a worthless existence in there.”

Source: https://www.mercurynews.com/ci_5607059

The Defendant, Kenneth Foley, was wrongfully convicted of Armed Robbery in a 3 strikes case. He served 11 years and 10 months of a life sentence.  All of his appeals had been exhausted when Steve Nakano wrote the District Attorney’s Office to ask that the case be re-investigated. With assistance from the Northern California Innocence Project and Special Assistant District Attorney David Angel, Foley’s conviction was reversed. The conviction of Co-defendant Michelle Bullington was also reversed as a result of the re-investigation. Wrongful Life Sentence Overturned.

Steve Nakano has successfully defended a client charged with Gang Related Assault by proving at Preliminary Examination that the Defendant was acting in Self Defense and that the alleged victims had actually assaulted his client.

I represented a client accused of assaulting two young men with his vehicle when in actuality, it was the two men who were attacking my client. My client had been “partying” with some friends. The friends left the party and got into an argument and engaged in a fight with Norteno gang members. The Norteno gang got “back up” and were looking for the group that had beaten them up. My client was driving his vehicle when his car was hit by a brick. My client stopped his vehicle and was immediately assaulted by several members of the Norteno gang, who opened both of his car doors and beat him and threw rocks at him and at his vehicle. My client had the good sense to put his vehicle in reverse and used the open car doors to knock his attackers out of his car. Then he put the car into drive and escaped uncertain harm.

Police were called to the scene and the slightly injured boys gave a description of the vehicle and partial vehicle license plate. The police found my client several miles away. My investigator canvased the neighborhood (near to the San Jose DMV Office) and located several witnesses to the assault. One witness said that his neighbors were always causing trouble. They were throwing bricks at passing cars. So, he went and moved his vehicle from where it was parked around the corner to another street. That is when he witnessed his neighbors throw a brick and hit my client’s vehicle. He thought that his neighbors were going to kill the driver of the vehicle, when he saw the car drive in reverse and knock the assailants to the ground. Then the driver managed to drive off. The police had questioned several of the neighbors, including him. But, he did NOT want to anger his neighbors. There were other witnesses located who confirmed this witness’s account. But, they would not come forward.

I asked my investigator to bring the witness to court and sit with him while the young gang member witnesses testified. At some point the DA came out and asked my witness why he was here. He told her that he was there to testify against the young men who had testified before him, whom he recognized as his neighbors. The DA (who shall remain nameless) told him that she did NOT NEED him and that he could go home. It was a good thing that my investigator was sitting there with him and told the DA that he was NOT her witness and that I had subpoenaed him to the preliminary examination. The witness was really offended by the DA not wanting to hear the truth about the case. I called him to testify at the preliminary examination. I have never had a better witness testify in a case. He was very articulate. He was also angry with the DA for telling him to go home when she thought that his testimony would not help her case. And, he said so. It should be known that very few attorneys call witnesses at the preliminary examination. They do NOT want the DA to know what their testimony will be a jury trial. However, I believe that only guarantees that the case goes to a jury trial before the truth is known. That creates a very expensive and stressful situation for my client.

After the truth became known the DA submitted the case and the judge dismissed the charges against my client, who later graduated from San Jose State University and whom I later hired as my office manager until he was hired by the State of California.