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April 20, 2005

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Palo Alto Online

Publication Date: Wednesday, April 20, 2005

D.A. unsure if he will retry police case D.A. unsure if he will retry police case (April 20, 2005)

Eight jurors wanted guilty verdict

by Bill D'Agostino

The fate of two Palo Alto police officers is again in the hands of the Santa Clara County District Attorney's office, after a racially divided jury was unable to reach a verdict in the high-profile trial.

Deputy District Attorney Peter Waite said Tuesday morning he didn't know if he would retry the case. "It's all up in limbo," he said. The next scheduled court date is May 4 at 1:30 p.m. Waite said he expected to make a tentative decision by then.

Officers Michael Kan and Craig Lee were accused of unlawfully beating and pepper-spraying 59-year-old Albert Hopkins on July 13, 2003. They were each charged with felony assault and misdemeanor battery. After four days of deliberations, the jurors voted 8-4 to find the Asian-American officers guilty. However, the final verdict had to be unanimous.

According to jurors interviewed afterward, the four who voted to acquit were the four Asian-Americans on the panel. "There was not even a chance that those four (would) change their mind,'' juror Sunday Udoffia said. He was the lone black juror, and voted to convict.

Most of the other jurors appeared to be white. One of them, Julia Sweeney, said the four Asian-American jurors were asked directly if race played a part in their vote. They said it wasn't and Sweeney believed them.

Kan and Lee are both Chinese-American. Defense Attorney Harry Stern, who represented Kan, noted that the four Asian-American jurors had different backgrounds: a Vietnamese-American, a Filipino-American and two Chinese-Americans.

"To call them all Asians is a little bit misleading," he said. "My discussions with them is they looked at the facts and the law and didn't believe the D.A. proved his case."

Judge Andrea Bryan declared the case a mistrial at approximately 4 p.m. on Monday, almost exactly a week after the jury began deliberations.

In the first vote made public last Tuesday, the jurors were evenly split, according to Waite. Although two jurors switched their vote by the end of the week, the jury's forewoman announced on Monday that she believed no further movement was possible.

Outside the courtroom, Palo Alto police critic Aram James -- a former public defender -- declared the mistrial a "huge victory" for the officers because it's difficult to convict police.

The defense attorneys disagreed. "If they don't retry then it's obviously a victory," Stern said. "If they retry then it's an opportunity."

Race has always been an underlying factor in the case, which has sparked a debate about Palo Alto police's treatment of suspects of color. Hopkins, who was living in his car in late July, accused the officers of targeting him because he's black. He admitted cursing at Lee, the first officer to approach.

Hopkins was arrested that night, but was never charged with a crime. Last year, the city paid him $250,000 to settle a civil claim.

Both sides agreed the officers had a right to question Hopkins, who was resting in his car when approached, especially considering he had spooked a woman in a nearby Jetta and prompted a 911 call from a neighbor. But the prosecutor constantly insinuated the two concerned residents were acting due to their racial biases.

"Palo Alto, it's the kind of place where citizens -- as is their legal right to do -- call in black people that are walking down the street or sitting in their car," Waite said in his opening statement.

In his closing argument, Waite argued that "in some ways" the officers' behavior was worse than the Los Angeles officers who beat Rodney King in 1991, because King had committed a crime (drunk driving) while Hopkins had not.

"It's unfortunate, because clearly there's no evidence that there was any racial animus or bias yet Mr. Waite still made that an issue, particularly in closing arguments," Stern said.

The central legal question in the trial was essentially colorblind -- whether the officers ever had a legal reason to "detain" Hopkins before they tried to pull him from his car and used force. Most of the jurors' queries after closing arguments centered on that technical legal issue, according to both sides' attorneys. Sweeney, a San Jose resident, said the jurors were "stuck" on that issue from the start of deliberations.

The defense attorneys argued the officers felt threatened that night by Hopkins' belligerent and shifty behavior, including the violent way he opened his car door when Lee first approached and the fact he did not follow their orders.

The prosecutor said he disagreed with the court's instructions defining a lawful detention. Waite called them "conflicting" and said he believed a lawful detention could not occur if the officers merely feared for their safety, as the defense argued. "I think that did not apply under the facts of this case," he said.

"It's a very complicated issue," said Defense Attorney Craig Brown, who represented Lee "They got a lot of instructions. Some of it was very confusing."

The jurors interviewed by Stern said they did not believe the officers used excessive force.

The extent of Hopkins' injuries from the beating was somewhat debated in the trial. He later needed knee surgery; but the defense argued it was not due to the baton strikes but rather a pre-existing medical condition. Waite said in closing arguments he didn't care about the extent of Hopkins' injuries, because it was irrelevant to whether the officers were legally entitled to strike him.

After the brief hearing Monday afternoon, Lee, 42, and Kan, 27, both declined to comment. "It's not over," Kan explained. Both showed no visible reaction when the mistrial was declared.

"They're happy they weren't convicted; they're disappointed they weren't acquitted," Brown said. Other police officers at the trial also refused to comment.

Neither Kan nor Lee testified during the three-week trial, although both -- at the request of the prosecutor -- read their testimony from the case's earlier preliminary hearing. Numerous other police officers testified for both sides, including a few expert witnesses.

If they are found guilty in a second trial of the felony charge, Kan and Lee will face up to three years in prison. A conviction on the misdemeanor charge would likely end their careers as officers.

Palo Alto Police Chief Lynne Johnson said Kan and Lee will remain on paid administrative leave until the district attorney's office decides whether to re-file charges against them. She had no further comment, saying she hadn't thought about the possibility of a mistrial.

Bay City News and Weekly Senior Staff Writer Don Kazak contributed to this report.

Staff Writer Bill D'Agostino can be e-mailed at [email protected]

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