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Tuesday, February 09, 2010

Trial begins in Taser case

Judge Jerome E. Brock banned attorneys and witnesses from referring to the exact number of Taser shocks in the presence of the jury ... 21 TIMES!!!

February 9, 2010
By Tracey Kaplan, Mercury News

Two young men who beat up a total stranger in downtown San Jose with a baseball bat are guilty of murder, a prosecutor alleged Tuesday, even though the disoriented victim didn't die until after police subdued him during a violent run-in hours later with a baton and multiple Taser shots.

Deputy District Attorney Daniel Carr started the first day of trial in a homicide case that generated controversy about police Taser use by displaying graphic autopsy photographs. The images showed that victim Jorge Trujillo suffered severe head wounds and complex skull fractures from the baseball bat.

"Mr. Trujillo was beaten to death with a bat," said Carr, no relation to District Attorney Dolores Carr.

The case against Daniel Miller, 19, and Edward Sample, 20, sparked controversy after the Jan. 25, 2006, attack because of a ruling by Dr. Christopher Happy, a Santa Clara County medical examiner at the time.

Happy ruled that it was likely Trujillo would have died from injuries he suffered before the Taser shots. Trujillo encountered police about 90 minutes after the bat attack, when 911 dispatchers received a call about a man breaking into cars in the 1200 block of Woodborough Place — about 1.5 miles away.

Trujillo had stumbled there in a "catatonic" state, Carr alleged, and was soaked in blood when officers arrived and was wielding a garden hoe. The homeowner who called 911 told dispatchers it was possible Trujillo had a concealed weapon in his pocket. Trujillo refused to talk to officers or allow them near. To subdue him, they used the Taser and struck him three times — in the right leg, right arm and across the back. He died the next day.

In analyzing Trujillo's death, Dr. Happy also concluded that being zapped 21 times with stun guns about 90 minutes after that beating contributed to his death. Happy is now chief medical examiner in Milwaukee and won't be called to testify by either the prosecution or the defense.

After hearing pretrial arguments from prosecutors and defense attorneys, Judge Jerome E. Brock banned attorneys and witnesses from referring to the exact number of Taser shocks in the presence of the jury. However, the Mercury News is including the number because it has been previously reported.

In his opening argument Tuesday, Carr told the jury that a medical expert will testify Trujillo died as a result of the beating.

The trial comes at a time when a series of Mercury News articles have heightened scrutiny over the department's use of force and arrest practices in immigrant communities. The trial is being closely watched by community activists.

"We think two young boys are being scapegoated for a crime they didn't commit," said community activist Raj Jayadev, a leader of a multiethnic coalition of more than 15 community and service-based organizations concerned about what it calls excessive force by police. "The amount of force used by the police against him was excessive and led to his death, and yet they are not charged."

Defense attorneys declined to comment. Sample's attorney, Wes Schroeder, pointed out that the opening argument by the prosecution is not evidence.

The day after the bat attack, Carr alleged, Miller and Sample — then 17 and 16, respectively — told a friend they beat up Trujillo because they thought he was a "scrap," a slang word for a Mexican national or a Sureño gang member. Trujillo was a Guatemalan immigrant and did not belong to any gang.

Carr said a friend of Sample and Miller's who witnessed at least a portion of the attack will testify against them. The friend was given a plea bargain; instead of spending life in prison, he'll get three years for being an accessory after the fact. Sample and Miller face a maximum of life in prison if they are convicted.

Carr said recordings from a wiretap of the defendants' cell phones will also show the young men killed Trujillo.

"The words speak for themselves," said Carr, referring to the tapes. "There was no denial of anything having to do with the murder of Jorge Trujillo."

Under California law, Judge Brock explained in court, the jury can arrive at a murder conviction if they find that the defendants committed an act that caused death and involved malice aforethought. But the defendants didn't have to intend to kill Trujillo; they can be convicted if they committed a potentially fatal act with conscious disregard of the danger to human life.

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