District Attorney Ed (the barbarian) Berberian was slapped down by another judge in the Dr. Simon self defense shooting case. The shooting occurred in Marin County, an environment notoriously hostile to the Second Amendment. From marinij.com . . .

Judge Andrew Sweet dismissed “in its entirety” a grand jury indictment lodged against Dr. James Simon, saying District Attorney Ed Berberian “made an inappropriate presentation to the grand jury” that failed to tell jurors relevant details about the case, or told them details that had no relevance at all. The result, said Sweet, was “substantial prejudice.” Had Berberian proceeded appropriately, “it is reasonably probable that the grand jury would not have indicted the defendant,” Sweet said. “There’s a lot of evidence to establish that the defendant acted in self defense,” and little to suggest otherwise, Sweet observed.

This is the second time that a judge has dismissed the charges in the case. In the first preliminary hearing on January 7th, Judge Kelly Simons dismissed the charges, ruling there was insufficient evidence to justify a trial. The man who was shot, retired mortgage broker William Osenton, had difficulty testifying at the preliminary hearing, saying he remembered little.

Osenton, who was not charged, has not explained why he followed the Simons into their driveway. At the preliminary hearing, he testified that he remembered “almost nothing of that day.”

During the Grand Jury testimony, where there was no cross examination or rebuttal, Osenton’s memory cleared up. He told the Grand jury he had put “his hands up in the air”, and asked the Doctor not to shoot him.

DA Berberian has a history of aggressive opposition to Second Amendment rights. Even though the Doctor’s 50 firearms were legally owned under the highly restrictive California laws, Berberian insisted that having so many was inappropriate for the community, and was an important factor in prosecuting the case. Most of the guns were WWII collectibles and hunting arms.

I do not think that Berberian will get another chance to prosecute Dr. Simon. He has had two, and I do not see any other options.

A DA can keep convening grand juries until he obtains an indictment, such as happened to Tom Delay, the former Republican House Leader. In that case, a Democrat DA in Austin convened three Grand Juries to get an indictment against the effective Republican leader.

Delay was eventually vindicated, after being forced out of Congress. Delay was not able to avail himself of all legal defenses while in Congress, because of House rules.

DA Berberian has already used the Grand Jury and got an indictment, so I believe that he is not allowed to convene another grand jury in this case. Dr. Simon is not a Republican member of Congress, even though he owns guns. A true believer like Berberian will never admit that he was wrong.

The district attorney contended he had proceeded appropriately and honorably. “I disagree with the court’s analysis of the record,” he said, adding the jury was aware Osenton had trouble recalling events. He asserted that the weapons collection was a relevant detail, as was Simon’s “victimization” state of mind.

Actual lawyers may disagree. If there are other ways for DA Berberian to prosecute Dr. Simon, please let us know about them. On a procedural note, I wonder how long it will take Dr. Simon to have his collection returned. It may be worth many tens of thousands of dollars. He is 71 years old.

In another case in California, where no crime was committed, the police refused to return 17 guns for three years, even though there were two court orders requiring them to do so. The police had most of the guns destroyed. A lawsuit resulted in a settlement of $30,000 for the destroyed firearms.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.

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