A Marin judge, saying the county’s top prosecutor got it wrong, tossed out the case against a Corte Madera physician who shot a Tiburon man during a confrontation at home after a traffic conflict escalated.

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.

Berberian strongly rejected the judge’s assertion of legal improprieties, saying he was “extremely disappointed with the court’s decision,” and adding that “from an ethical standpoint, there was nothing withheld from the jury.”

The bottom line, the DA said, is that Simon was not justified in firing at an unarmed man, adding the judge’s decision deprives the county of a jury trial on the core issue: Under the circumstances, “What is the appropriate reasonable response?”

The soft-spoken Simon, elated but appearing almost speechless after the hearing, thanked his attorney, Charles Dresow, family and others, and in a phrase or two expressed gratitude that “my belief in justice” was affirmed.

One observer cheering Simon on, Michael McDonnell of Nicasio, said the judge had turned the tables and indicted the performance of the DA.

Tailgating chase

The 71-year-old Simon had pleaded not guilty to felony charges of assault with a deadly weapon and negligently discharging a firearm. Simon shot William Osenton, 70, on July 17, 2014 after Osenton turned into Simon’s driveway after a tailgating chase that began when Simon pulled in front of Osenton on Paradise Drive. Osenton stopped when Simon’s garage door closed and hit the hood of his car, got out and was hit by a bullet after Simon fired a warning shot from a .357-caliber revolver kept in the garage. He told police that Osenton emerged from his car and was a threat.

Berberian rigorously pressed the case himself despite legal setbacks, noting Simon kept 50 firearms, all legal, at his home, and had vowed not to become a victim.

Berberian initially charged Simon with attempted voluntary manslaughter and assault with a firearm. But at the preliminary hearing, Judge Kelly Simmons ruled there was insufficient evidence to justify a trial and said the prosecution did not meet the bare evidentiary threshold.

Berberian in an unusual move then took the case to a criminal grand jury proceeding in which he presented evidence without rebuttal or cross-examination. Berberian asked the grand jury to indict Simon on the same charges that Judge Simmons had tossed out. The grand jury balked, but given a chance by Berberian to consider lesser charges, signed off on them.

Gun collection

Sweet said Berberian’s presentation to the grand jury was improper on a number of levels because he did not present exculpatory evidence. Osenton testified before Judge Simmons that he remembered “almost nothing of that day,” yet his memory cleared up when he talked to the grand jury with dramatic recollections including putting “his hands up in the air” and asking Simon not to shoot. “The grand jury was not told about … the complete failure of recollection” at the hearing 17 days earlier, the judge said, noting it was a significant change in testimony.

In addition, Berberian painted Simon as having a “character for violence” who “had guns and ammunition at home … and would use them,” but did not tell jurors of the defendant’s long reputation “as a peaceful man.” Moreover, “the propriety of introducing that ammunition and gun evidence was highly questionable,” Sweet declared. “It’s not relevant in this case,” the judge said. “The guns and ammunition were lawfully possessed, and like it or not, that is the state of the law.”

DA disagrees

Several side issues included Berberian’s failure to tell jurors “that the victim had committed felony conduct,” the judge added.

“Was the defendant substantially prejudiced?” the judge asked. “I think so.”

Early on, as the judge made clear he was tossing the case out, sighs of relief and joy rose from an audience of Simon supporters. Sweet told the crowd to hush: “This is not a circus. It’s a courtroom.”

Later, outside court, Berberian, holding a written statement as he was interviewed by a television reporter, was drowned out by a chorus of clapping from Simon’s supporters, delaying the interview.

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.

“Dr. Simon was aware Osenton was an unarmed man, the DA said. “Dr. Simon’s actions were not justified. … Let’s have a jury look at this and see if it was reasonable to do that.”

Judge Sweet disagreed.