Monday, November 14, 2016

EPD Wrongful Death Trial Begins

Posted By on Mon, Nov 14, 2016 at 8:52 PM

  • Thomas McClain
Eureka Police Officer Stephen Linfoot testified today that he was one of three officers shouting commands with guns drawn in the seconds before he opened fire on Thomas McClain, continuing to shoot as the 22-year-old began falling over and after he hit the ground.

“He was reaching for the gun and that’s when I shot, but I can’t clearly say whether he got his hand on the gun,” Linfoot said under questioning from attorney Dale K. Galipo, who is representing McClain’s parents in their federal wrongful death lawsuit.

McClain died after being hit by three of the seven rounds that Linfoot fired during the late-night confrontation on Sept. 17, 2014, on the front lawn of the Allard Avenue townhouse where McClain lived with his cousin.

The weapon spotted by officers in McClain’s waistband turned out to be an unloaded BB gun that was a realistic replica of a handgun. Linfoot was the only officer to shoot.

Humboldt County District Attorney Paul Gallegos announced in November of 2014 that no criminal charges would be filed in the case after he reviewed a multi-agency Critical Incident Response Team investigation into the shooting.

Galipo asked Linfoot a battery of questions about his training and the use of deadly force before focusing on the commands that officers gave to McClain.

Linfoot testified the area was well lit and that McClain appeared to be compliant with the original instructions to put his hands up and walk down the slight grassy slope toward officers on the sidewalk in front of his Allard Avenue home.

McClain lowered his hands twice and each time he was told to put his arms back up in the air, which he did until the third time when both hands went toward his waistband, Linfoot said.

“I recall hearing a command of, ‘Get your hands up,’ and heard someone say something to the effect of, ‘He has a gun,’” the officer testified, noting the handle of the BB gun became exposed when McClain lifted his arms, drawing his shirt up from his waist.

A police photograph of the replica handgun reportedly found on McClain. - FILE
  • File
  • A police photograph of the replica handgun reportedly found on McClain.
Dressed in a charcoal gray suit with a blue dress shirt and tie, Linfoot testified he has heard the police dash cam audio recordings from just before the shooting in which someone appears to yell, “Get down,” immediately followed by gun fire.

“It sounds to me like an interrupted command,” the officer said. Linfoot also testified the voice “sounds like me.”

Linfoot took the stand following opening statements during which attorneys layed out differing versions of the tense moments before shots were fired that September night.

Both attorneys also walked jurors through the unrelated surveillance effort on a neighboring residence that initially caused officers to cross paths with McClain.

U.S. District Judge William Orrick III also briefly addressed jurors about the case, saying they would be deciding whether Linfoot used excessive, unreasonable force against McClain and whether he was negligent.

The city of Eureka, Orrick said, has also chosen to put on what’s known as an “affirmative defense,” and will attempt to show McClain’s own negligence contributed to his death and that Linfoot was acting in self-defense and in the defense of others.

In his opening statement, Galipo said the case comes down to two main issues: whether the use of deadly force was excessive and whether the way the police officers handled the situation was negligent.

Describing McClain as compassionate and the type of person who would go out of his way to help others, Galipo told jurors “the family, you will hear, has been devastated by the loss of a 22-year-old son.”

The city’s attorney, Nancy Delaney, told jurors that Linfoot fired in self-defense when it appeared his life and those of the other officers were in danger. His actions, she said, were appropriate.

“We’re not here, in any way, to belittle Mr. McClain or the relationship he had with his parents,” Delaney said.

Witness statements and the audio tape, Galipo said, will show McClain was trying  to comply with confusing and conflicting commands in the moments before he was shot. Galipo also told jurors that expert testimony will demonstrate that Linfoot “overreacted” when he fired seven times and other options were available.

McClain, who had a slight hearing impairment, had been out celebrating his cousin’s birthday, but there was no indication that officers noticed he had been drinking, Galipo said.

In contrast, Delaney said the evidence will show that McClain took a confrontational stance when he was first approached by an officer, sending up “a red flag” by telling then-Sgt. Brian Stephens that he didn’t have a right to search him.

“Mr. McClain never communicated in any way, ‘I’m hard of hearing.” ‘I’m not understanding you because I’m drunk.’ ‘I’m confused as to what you want me to do,” Delaney said in her opening statements.

The officers, who were in the area looking for a subject on Eureka’s Most Wanted list, had observed McClain confront another man on the street and then saw him “fiddling” with his waistband, putting police on warning that he could have a gun, Delaney said.

After the interaction, Delaney said, McClain appeared to be "puffing up as if preparing for a fight."

“The overwhelming evidence in this case will be this event occurred not because of any choice officer Linfoot had but because Mr. McClain appeared to reach for a semi-automatic pistol,” Delaney said.

Linfoot is scheduled to retake the stand Tuesday.

Editor's note: This story was updated from a previous version to correct an error concerning which Humboldt County District Attorney determined no criminal charges would be pursued against the involved officers. The Journal regrets the error.
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Sunday, November 13, 2016

Former Trinidad Resident Robert Durst Pleads Not Guilty to Murder

Posted By on Sun, Nov 13, 2016 at 8:22 AM

Durst, who spent several years of his life in Trinidad, recently pleaded not guilty to a murder charge in Los Angeles. - PHOTO COURTESY OF HBO
  • Photo Courtesy of HBO
  • Durst, who spent several years of his life in Trinidad, recently pleaded not guilty to a murder charge in Los Angeles.
Sometime in the mid-1990s, a quirky man with a mysterious past and proclivity for tall tales arrived in Trinidad, buying a home with sweeping ocean views in the small, secluded fishing village.

From this far-flung location — seemingly as removed as possible from his life as the scion of New York’s real estate elite — Robert Durst is suspected of setting off on a 660-mile road trip to kill his former friend and confidante at her Benedict Canyon bungalow in December of 2000.

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Friday, October 28, 2016

DA Clears Arcata Officer in Shooting

Posted By on Fri, Oct 28, 2016 at 9:33 AM

The scene immediately following the May 17 shooting. - FILE
  • File
  • The scene immediately following the May 17 shooting.

The Humboldt County District Attorney’s Office has determined that an Arcata police officer acted in self-defense when he opened fire and wounded 26-year-old Joshua Hoffman at a gas station in May.

After reviewing witness statements and multiple videos capturing the shooting, District Attorney Maggie Fleming determined that Hoffman was charging officer Don Arminio with a stick raised over his head when Arminio fired in self-defense, shooting Hoffman in the right bicep, upper right leg and lower abdomen. Hoffman received immediate medical treatment and is currently jailed in Washington on unrelated charges.

Fleming’s office has charged Hoffman with resisting an officer by threats or violence with use of a dangerous weapon and will have him extradited to Humboldt County at the conclusion of his Washington case.

For a detailed report on the shooting, see past Journal coverage here and here. And see the full press release from the DA’s Office copied below.


OCTOBER 28, 2016

The District Attorney has completed her review of the officer-involved shooting on May 17, 2016 adjacent to the Shell gas station at 14th and G streets in Arcata. Available information included video of the incident provided by the gas station, video from police vehicles at the scene and investigative reports from the multi-agency Critical Incident Response Team (who respond to investigate an officer-involved shooting) that included statements from officers and six civilian witnesses.
Officers responded to a call to the gas station where 26-year-old Joshua Hoffman was drinking alcohol and swinging two large sticks (one wooden and one metal). Arcata Police Department officers D. Arminio and M. O’Donovan arrived separately; both parked, exited their cars, and tried to speak with Mr. Hoffman. The officers told him to put the sticks down and he yelled, “No.” The officers continued trying to speak with Mr. Hoffman in an attempt to de-escalate the situation, using their patrol cars as barriers in an attempt to maintain a safe distance. Gas station video shows Mr. Hoffman approaching the officers while swinging the sticks and then backing up, followed by Mr. Hoffman charging toward Officer Arminio with one stick raised over his head. Officer O’Donovan fired his taser at Mr. Hoffman but it had no effect. Although Officer Arminio backed away from Mr. Hoffman, he continued moving towards the officer with the stick in a threatening position and the officer fired his pistol. Mr. Hoffman was shot in the right bicep, upper right leg and lower abdomen. He received immediate medical treatment and was transported to the hospital. Statements from independent witnesses correspond with the video evidence of the encounter between Mr. Hoffman and APD officers.
The District Attorney has concluded Officer Arminio fired his weapon in lawful self-defense. Also, Mr. Hoffman has been charged with resisting an officer by threats or violence with use of a dangerous weapon (Penal Code section 69). Mr. Hoffman’s family has been contacted and advised of these decisions.
Mr. Hoffman is currently being held in Washington State on unrelated charges. When those charges have been addressed he will be extradited to Humboldt County.

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Thursday, October 27, 2016

Supreme Court Denies Eureka's Request in Police Video Case

Posted By on Thu, Oct 27, 2016 at 10:59 AM

Since 2008, the Eureka Police Department has outfitted all of its patrol cars with Watch Guard cameras. Who gets to see the footage they collect remains up for debate. - PHOTO BY THADEUS GREENSON
  • photo by Thadeus Greenson
  • Since 2008, the Eureka Police Department has outfitted all of its patrol cars with Watch Guard cameras. Who gets to see the footage they collect remains up for debate.

The California Supreme Court has decided not to reconsider a recent appellate ruling establishing a statewide precedent that police arrest videos cannot be considered confidential officer personnel records and shielded from public view.

The court’s decision may put an end to a more than two-year battle between the city of Eureka and the North Coast Journal over public access to a video depicting the arrest of a 14-year-old suspect that led to criminal excessive force allegations against one of the involved officers. The decision also leaves the city liable for the Journal's legal costs and fees.

"I've been practicing appellate law for nearly 30 years," said Paul Nicholas Boylan, a Davis attorney representing the Journal in the case. "I've never encountered a case like this. All litigation begins with an attorney evaluating the costs and benefits of pursuing a claim. What are the costs of winning? What are the costs of losing? In this case, the risks and cost to the city of losing were always far, far higher than any benefits the city might achieve if it won. The city must have known that the longer it dragged this out, the more it forced the NCJ to litigate, the more it was going to cost taxpayers."

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Tuesday, October 25, 2016

Judge Allows Hearing, Intoxication Evidence in EPD Shooting Trial

Posted By on Tue, Oct 25, 2016 at 2:38 PM

  • Thomas McClain
Reversing course from his tentative ruling in the case, a federal judge has decided he will allow jurors to hear evidence that 22-year-old Thomas McClain had a hearing impairment and had been drinking when he was shot dead by a Eureka police officer in 2014.

A trio of Eureka police officers had McClain at gunpoint in the front yard of his Allard Street home on Sept. 17, 2014, when officer Steven Linfoot opened fire, shooting seven bullets, three of which hit McClain, who died at the scene. Police allege McClain was reaching for a realistic looking BB gun in his waistband, but McClain’s family is alleging in the federal wrongful death suit that McClain was complying with officers’ commands when Linfoot started shooting.

In a previous filing with the court, attorneys representing McClain’s family introduced a transcript of an audio recording of the incident, which indicates officers gave contradictory commands immediately prior to the shooting, with one telling McClain to keep his hands up as another told him to get down on the ground. (Read the transcript here.)

In a ruling filed with the court last week, U.S. District Judge William Orrick III said he will permit the city to introduce evidence that McClain was legally drunk on the night in question and will also permit attorneys for the McClain family to introduce evidence that he had a hearing impairment when the case goes to trial next month.

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Friday, October 14, 2016

Court Cracks Down on Skipping Jury Duty

Posted By on Fri, Oct 14, 2016 at 1:21 PM

The Humboldt County Courthouse in Eureka. - GRANT SCOTT-GOFORTH
  • Grant Scott-Goforth
  • The Humboldt County Courthouse in Eureka.
If you are among the estimated 75 percent of Humboldt County residents who have been ignoring a jury summons, the Superior Court may come a calling to let you know your time is up.

According to a press release sent out by the court this week, jury services staff have resorted to phoning service skippers and are setting up five-day standby lists in order to have enough jurors available for trials.

The release says the court could also look at sending deputies to “escort individuals to the courthouse for jury service and/or may issue an order to show cause for appearance at a court hearing.”

“Steps are now being taken because of the number of jury trials that must be heard,” court CEO Kim Bartleson says. “If jurors are not available, a case could be dismissed.”

Duplications in the 176,000 or so names on the master jury list, compiled from voter registration and Department of Motor Vehicle records, are filtered out before potential jurors are randomly selected for a summons, according to Bartleson.

For reference, Humboldt County has about 80,000 registered voters and a total population of 135,000, according to the U.S. Census. And to be able to serve, jurors must be at least 18, proficient in English and U.S. citizens who has not been convicted of a felony, although there are some exceptions to the latter.

About 200 summons are sent out for an average court day in Humboldt County, Bartleson says. The number of potential jurors needed for the selection pool varies depending on the number and type of cases up for trial. The issue is most people aren’t showing up.

“The drop in response rates has been an ongoing problem,” she says.

Take Wednesday, for instance: 600 jurors were summoned and 75 appeared for a response rate of 12.5 percent. That’s down from an average 51 percent jury yield back in 2012, according to data collected by the Judicial Council of California, the policy making body of the California courts.

The general goal for response rates is around 40 percent, according to Blaine Corren, a spokesperson with the council.

“Some courts, people report higher than others,” he says.

Jury response varies across the state with some California counties boasting rates as high as 87 (Colusa County), while others were as low as 5 percent (Nevada County), according to judicial council data from 2012 and 2013, the most recent available.

The statewide average came in at 57 percent.

With every batch of summons sent out, a certain number are expected to drop out due to deferments or being excused, as well as simply failing to show. Around 12 percent are estimated to never make it to the intended recipient due to outdated addresses or other mailing issues.

“The low average response rate makes it difficult for the jury commissioner to be confident that enough people have been called to appear: trials have been delayed by inadequate numbers of prospective jurors,” District Attorney Maggie Fleming said in an email to the Journal. “Of course, lengthening the process in this way reduces the number of cases we can try.”

In most cases a person is considered to have done their yearly service if they are not selected for a jury after one day at the courthouse. After serving on a jury, that timeline is expanded — at least in Humboldt County — to two years.

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Wednesday, October 12, 2016

Alcohol, Hearing Evidence May be Excluded in McClain Trial

Posted By on Wed, Oct 12, 2016 at 1:37 PM

  • Thomas McClain
SAN FRANCISCO  — A federal judge said Tuesday he is unlikely to permit evidence that a man shot and killed by an officer in Eureka two years ago was drunk and had hearing problems when the case goes to trial this November.

According to his parents' May 2015 lawsuit, 22-year-old Thomas McClain was complying with orders and had his hands up when Eureka Police officer Steven Linfoot opened fire on Sept. 17, 2014. Linfoot fired seven bullets, three of which hit Thomas McClain as he stood in his front yard on Allard Street.

The city claims McClain was reaching for something in his waistband — it turned out to be a BB gun — and that Linfoot acted appropriately to neutralize what he considered a potentially deadly threat.

Last month, U.S. District Judge William Orrick III denied the city's motion for summary judgment on excessive force and wrongful death claims, finding that one eyewitness contradicted Linfoot and the other officers' version of events, and that officer commands were unclear in a dash cam audio recording.

During a pre-trial hearing Tuesday, the McClain family's attorney, Dale Galipo, argued that allowing evidence that McClain was drunk at the time of the shooting would encourage speculation and prejudice the jury.

Nancy Delaney, a private attorney representing the city of Eureka, replied that evidence of McClain's drunkenness is necessary to explain the young man's irrational behavior and mindset.

"We have a young man, who reached for — if the officers are telling the truth — what we know was a replica gun," Delaney said. "That makes sense if the imprudent actions are of one under the influence of alcohol."

In a reply brief opposing the motion to exclude evidence of intoxication, the city cited testimony from one witness who said McClain was "very intoxicated" and consumed at least four or five drinks that night.

During the hearing, Delaney also cited a toxicology report, which found McClain had a blood-alcohol content of 0.13 percent, well above the legal limit for driving impairment of 0.08 percent.

"One of the things that makes sense here is you have someone that because of alcohol does the stupid thing of deciding, 'I'm going to end this and just show them it's not a real gun,'" Delaney said. "That can only be understood with the undisputed evidence that this young man had consumed a lot of alcohol."

Galipo responded by accusing the city of stretching the bounds of logic in an attempt to introduce prejudicial evidence at trial. He further contended that the city has offered no expert testimony to back up its theory that a drunken person would behave in such a manner.

"They have not retained a designated expert to talk about the effects of alcohol on a person," Galipo said. "There's a bit of a leap of logic that someone who has three to four to five drinks is going to reach for a replica gun."

Delaney argued to exclude evidence of McClain's hearing impairment as well, which she said could confuse the jury. Deciding whether the use of force is reasonable must be based on the officer's perspective at the time, Delaney said, and Linfoot did not know McClain had hearing problems during the incident.

Orrick seemed inclined to exclude evidence of both intoxication and hearing loss.

"I think the issue is what the officers knew at the time," he said. "They didn't know anything about the drinking or the hearing issue. I think there's some concern about prejudice with respect to the drinking."

Orrick reasoned that if he allows the jury to hear information that was not known to officers at the time of the shooting, such as McClain's intoxication, he would have to permit the inclusion of evidence on the hearing loss as well.

Delaney still pushed for the inclusion of the alcohol-related evidence. "If it's hearing impairment and alcohol, or no alcohol or hearing impairment, we'll take the former," she said.

The trial is expected to start on Nov. 14 at the Federal Courthouse in. Orrick said he expects the trial to wrap up within five or six days with the goal of giving the jury enough time to reach a verdict before Thanksgiving.

This story was reprinted with with the permission of Courthouse News Service.

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Public Defender to Retire, Judgeship Not Likely

Posted By on Wed, Oct 12, 2016 at 9:20 AM

Kevin Robinson, center front, with the rest of the Public Defender staff. - FILE
  • File
  • Kevin Robinson, center front, with the rest of the Public Defender staff.
After a decade on the job, Humboldt County Public Defender Kevin Robinson has informed the Board of Supervisors that he will be retiring in January.

In a short letter sent to the board last week, Robinson says his last day heading the Public Defender’s Office will be Jan. 20 and offers to assist with training his yet-to-be-settled-upon replacement. Robinson has been with the office for 22 years, having joined as a deputy public defender in 1994.

In an interview with the Journal last week, Robinson said he’s looking forward to slowing down and spending some time with his 8-month-old granddaughter, who lives in Davis. Other than that, Robinson said he’s not sure what retirement will hold for him. Some time back, he applied to be appointed by the governor for the judgeship that has been vacant in Humboldt since Judge Bruce Watson retired at the beginning of the year.

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Friday, September 30, 2016

Eureka Takes Police Video Fight to the Supreme Court

Posted By on Fri, Sep 30, 2016 at 3:18 PM

Since 2008, the Eureka Police Department has outfitted all of its patrol cars with Watch Guard cameras. Who gets to see the footage they collect remains up for debate. - PHOTO BY THADEUS GREENSON
  • photo by Thadeus Greenson
  • Since 2008, the Eureka Police Department has outfitted all of its patrol cars with Watch Guard cameras. Who gets to see the footage they collect remains up for debate.

The city of Eureka is trying to keep its recent appellate court loss from setting a statewide precedent.

In July, the First District Court of Appeals rebuffed the city’s effort to block release of a video depicting the arrest of a 14-year-old suspect, ruling that the video — and others like it — could not be considered a confidential police officer personnel record, which receive special protections against public disclosure. The appellate court published the ruling, meaning it would become case law and set a precedent throughout the state.

But the city has now petitioned the state Supreme Court to depublish the July decision, which wouldn’t impact the court’s order that the specific video in question be released but would keep the decision from becoming case law and guiding future court rulings. And, in a rare move, on its own motion, the Supreme Court has extended its deadline for deciding whether to take up a full review of the appellate case — a review that would venture beyond the publication question.

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Thursday, September 22, 2016

UPDATE: Judge Allows Budget Motel Evictions to Proceed

Posted By on Thu, Sep 22, 2016 at 10:35 AM

  • Thadeus Greenson
In a ruling filed this afternoon, a Humboldt County Superior Court judge has given the city of Eureka the green light to condemn the Budget Motel.

The motel’s owner, David Kushwaha, had asked the court to intervene and stop the city’s forced eviction of his tenants, which was initially scheduled to happen this morning, due to substandard conditions and more than 340 code violations. Through his attorney, Kushwaha asked the court to give him 45 days to address the violations, which include bedbug and cockroach infestations, hazardous wiring, inadequate plumbing and heating fixtures and a host of other things.

But Judge Dale Reinholtsen found Kushwaha had little chance of ultimately winning the case and that the alleged violations are “hazardous and pose an imminent threat to occupants of the motel and the surrounding community.”

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