January 14th AirTalk Interview with Jerod Gunsberg

Jerod Gunsberg was recently featured on AirTalk, California’s local public radio, on January 14, 2014, discussing the verdict of the Kelly Thomas case on police misconduct. The following piece is a transcription of his conversation.

Original article posted on AirTalk here.

Listen to the piece here:

AT: Joining us now, criminal defense attorney Jerod Gunsberg, who’s based in Beverly Hills. Jerod, thank you for joining us.

JG: Thank you.

AT: How surprised were you by the verdict?

JG: Well I’d like to say I was surprised, but I don’t think anybody in criminal defense community was all that surprised.

AT: Why so?

JG: Well, in the abstract people understand that police can be bad actors. But, when they are faced with police in the courtroom when push comes to shove I think it is very difficult for jurors to convict. And thats something I think the defense certainly knew in this case and I think the DA may have underestimated.

AT: So from a strategic standpoint, what do you think he should’ve or could’ve done differently?

JG: Well I don’t know. They had the facts that they had. That video was really compelling. It was very compelling evidence. And frankly 8 hours of deliberation on a three week trial with mountains of medical evidence, it seemed the jury’s mind was made up pretty quickly. Despite admonitions from the trial judge the jurors are not to make up their minds or draw any conclusions about the case until they get into the deliberation room. The conclusion of arguments, I don’t think that’s what happened here. I think they had their minds made up pretty quickly, so it’s tough to say what the DA could have done differently.

AT: Well from the standpoint of the jurors, if they all come in and they all start talking about the case and right out of the gate all 12 of them see it the same way, there isn’t a lot for them to get in to right?

JG: No there’s not, there’s not. And that makes you wonder if this jury panel was uh… Well it makes you wonder if the Orange County DA ever had a shot in convicting these guys in this community.

AT: Well and again there’s no way again in a particular if you know in a jury panel if it is what you would have gotten with another panel. There is of a lot of moving parts in this whole thing. When it comes to a case like this, that is driven largely in the public by emotions, people’s feelings in support of Kelly Thomas and feeling about what happened to him. Is there room for that kind of emotion to be brought into the courtroom? You know you got two officers there, real individuals, their careers and their freedom is on the line. Is there more of a way to bring Kelly Thomas into that courtroom?

JG: That is certainly, if a defense attorney was prosecuting this case, what a defense attorney would have done. There needs to be the story of Kelly Thomas brought in, because the evidence and the law will get your far in a trial and even though that is what juries are supposed to base their verdicts on, the truth is: it is the emotion, it is the story. It is the story behind the evidence, it is the story behind the law. And maybe that wasn’t brought out as much as it could have been.

AT: You had a chance to hear the interview I did a few minutes ago with the district attorney, anything stand out to you as he defended his tactics and said he wouldn’t change anything?

JG: It brought to mind a larger issue. Look it is hard for an attorney to Monday morning quarterback any other attorney’s trial performance even though Mr. Rackauckas is on the other side that I stand on. But it does call into question the larger issue: is a local prosecutor’s office equipped to handle a case like this? There are so few cases like this filed. There are no standardized jury instructions for battery committed by a police officer with excessive force. There is no standardized jury instructions in California for that. These cases just aren’t brought. There are 11 standardized jury instructions for resisting arrest, and battery or assault committed on a police officer.

AT: Can you give us an example of one of those so that we can think of something comparable in the opposite case?

JG: As far as?

AT: Can you give us one of those examples of a jury instruction in a case where citizens is said to assaulted an officer?

JG: Repeal Code 148, resisting arrest. There are a variety of assault on a police officer statutes for jury instructions. Certainly a serious, a very serious offense, you know is assaulting a police officer with a firearm. There’s actually two varieties of resisting arrest. There is a misdemeanor variety and a felony variety. So there are a myriad of instructions dealing with resisting arrest and fighting with the police.

AT: So what would be an example of a theoretical instruction that could have gone to jurors in a case like this?

JG: Oh well they took the language of Penal Code 149, which says that under the color of law if the police commit a battery and use excessive force and didn’t act lawfully, that the jury can convict, and while I haven’t seen the actual jury actually used, I’m sure that they took the language from the statute and used it. But the larger issue I think, is whether or not a local prosecutor’s office that spends all of their time on a day to day basis defending police, defending the investigation techniques, defending the police’s version of events against lawyers like me because the criminal defense business is in large part challenging the police’s version of events and challenging the investigation techniques of the police. So can a local prosecutor’s office who spend all of their time defending police, is it realistic for them to switch hats suddenly and take these rare cases and be able to prosecute.

AT: Well who would they outsource it to? You couldn’t have the feds taking over every case could you because that is a civil rights issue.

JG: Absolutely, but what you have is there is an analog throughout all of the Public Defenders offices throughout California, where if they feel there is a conflict, and usually there are conflicts of interest in these cases, they either have what is called an alternate Public Defenders office or they contract with panel lawyers. There are small counties in California that outsource prosecutions. So what they could do, and again this is new territory, in a case like this maybe bring in an independent prosecutor. Contract with somebody with a little distance that isn’t on the front line everyday, that isn’t in with the police, maybe it’s worth discussing.

AT: Jerod Gunsberg, thank you very much it was good to have you talking with us today we appreciate it.

JG: Sure.

AT: Criminal defense attorney based in Beverly Hills.