MAN SHOT FOR SPEEDING ???
An Elk Grove man was shot several times for what appeared to be no actual reason.Although multiple news outlets originally reported that there was a “high-speed chase”, apparently this was merely a “cover story” fed to the news media, by Police outlets, in an attempt to try to justify the shooting.
Michael Witkin,now 28, of Elk Grove, WAS speeding by all accounts (including his own), at approximately 4:00 A.M. on the morning of August 21, 2004. Michael did not see the Elk Grove Police cruiser, driven by Officer Robert Barnes (Badge # 1319) close to finishing his shift on his 16th night on patrol. Officer Barnes was at a “dead stop” in the left turn lane, southbound on Franklin Blvd. and Calvine, just north of the Elk Grove/Sacramento boundary line. Officer Barnes was getting ready to turn East onto Calvine.
Officer Barnes began his “pursuit” unbeknownst to Michael Witkin, but was just turning the corner onto Edgeware Way, when Mr. Witkin,oblivious to either the presence or existence of Officer Barnes, turned into his driveway, some 500+ feet down the street (the entire “chase” would have covered an area of 2/5 mile- about 2,000 feet).
It was then that Officer Barnes began to make a series of “bad” assumptions:
1) That Mr. Witkin was a “Black Man with dreadlocks driving a car that didn’t belong in the neighborhood” (in fact, Mr. Witkin’s father had been driving that car “in the neighborhood” for the previous 2 years);
2) That Mr. Witkin was turning and parking in someone else’s driveway;and,
3) That he would sneak up on Mr. Witkin, without turning on his lights and siren, or identifying himself, thereby enabling him to “extract” Mr. Witkin, in similar fashion as he had done at the Sacramento County Main Jail for 3 years prior to going on patrol.
(Officer Barnes was a C.E.R.T. Team Leader (acronym for Custody Emergency Response Team);
Unfortunately, compounding the series of bad decisions and judgments that Officer Barnes made that morning, he choose to run up on, hit, and assault Mr. Witkin, at the exact moment that Mr. Witkin turned his key in the door, causing them both to fall thru the door and down the landing into the home. Mr. Witkin, trying to figure out who or what exactly was attacking him, and attempting to put some space between himself, those asleep in the house (for their safety), and his attacker, ran back outside.
Officer Barnes, continuing in “Keystone Cop” fashion, then proceeded to fall down the concrete stairs of the porch leading to the front door, angering him, and causing him to begin firing his semi-automatic .40 caliber service revolver into the back of Mr. Witkin, as well as several rounds into the house of the neighbor across the street.
Fortunately for Mr. Witkin, he was only hit 3 times, one of which could have been life threatening. Also, fortunately, Officer Barnes’ gun jammed after firing 6 or 7 rounds.
A neighbor then overheard Officer Barnes running down the street, somewhat disoriented, shouting “I shouldn’t have shot him, I shouldn’t have shot him” to another Officer who had just arrived on the scene. The other Officer said “Don’t worry, we’ll take care of it “ !!! (And, they did !)
All of this for speeding ???
PLEASE READ ON
The foregoing was written, in news report fashion, as something that could be provided to interested media parties, as kind of a synopsis of what happened that August morning.
Following is what happened, subsequently:
Michael was charged originally with 3 felonies, later reduced to 2 felonies, and then finally reduced to one felony (Resisting Arrest with Force and Violence) and one misdemeanor (Battery on a Peace Officer). The “Battery on a Peace Officer” charge was reduced to a misdemeanor, when the District Attorney’s office realized that ALL of Officer Barnes injuries were caused by himself, first falling down the landing stairs into the Witkin living room (after entering their house accidentally and failing to identify himself to anyone in the house), and then falling down the front landing concrete steps trying to chase after Michael.
Officer Barnes had actually ran at Michael from behind, and hit him on the side of
the head with his 16”-18” flashlight, when Michael was at the front door of our house.
This is documented in pictures of Michael’s injuries,which the Judge, at the D.A.’s request, refused to be allowed to be shown to the Jury, because they were “prejudicial”.
He had also testified that when he “ran up on Michael”, Michael’s body language was not resistant- in other words Michael was not aware that the Officer was there.
Michael was dazed when this happened, and he had already turned the key to go into his house, when the force of Officer Barnes attack, caused Michael and the Officer to fall through our front door. Although the Police and Media reported that a “fight” had occurred, Michael never hit or kicked his attacker, but was only trying to get away, to bring the “action” back outside. The entire extent of this “fight” was last than 30 seconds long, according to Police timetables extrapolated from their own reports and radio logs.
During the Pretrial process,Michael was offered a misdemeanor, no jail time plea, but because he was innocent,he felt that it would be in his best interest to go to Trial.
This turned out not to be true, legally, although from a character standpoint, if he had to do it again, he said that he would still go to Trial, and not take a deal.
At Trial, however, the Sacramento County District Attorney attempted, unsuccessfully, to have the shooting details removed from the trial. She tried to say that the shooting was “irrelevant” to the charges. However, once they were allowed, she created such a “hodge podge” of mixed details of relevant and irrelevant information, that the Jury was sufficiently confused by the whole process. Our Attorney, felt that the “Excessive Force” defense was so obvious, and created such a clear sense of reasonable doubt, that it wasn’t necessary to address all of the peripheral things that the District Attorney brought into the case. However, he misjudged the Jury and the level of confusion under which they were operating.
After they found Michael guilty, one of the Jurors was willing to speak to us, and he indicated that they didn’t know how to apply the “Excessive Force” defense, so they went strictly by definitions: “If you even touch the shirt of a Police Officer, you’re guilty of battery”. “Well, he did touch his shirt, so I guess we have to find him
guilty”. They didn’t understand that if a Police Officer uses Excessive Force, he is no longer in the “performance of his duties”, and therefore no longer subject to those definitions. Our original Attorney said that he was in such disbelief, that a Jury was able to come up with a guilty verdict that “He was considering quitting the law” !!!
We hired a second Attorney who filed a Motion for a New Trial. This process took around 5 months, during which Michael was out on bail, most of the time. During this time, Michael became a volunteer for the NAACP, who also gave him an “official vote of support”, as they believed that his Civil Rights were clearly violated, and that he was a victim of Police Brutality. And, they, along with everyone who hears this story (with the possible exception of Sacramento County Judicial System employees- although the Court Reporter and Baliff in Dept. 35 all thought, after sitting thru the Trial themselves, thought that Michael would be found “not guilty”) believes that he was a victim of a “cover up” as well.
Despite the fact that our second Attorney came up with some 9 or 10 points of evidence, with cases that had legal precedent, any one of which could easily change an entire jury’s minds, the Judge “concluded” that “he didn’t see anything presented that would change a jury’s mind at a new trial”, so he denied the motion. Even the NAACP attorneys thought that the points presented in the motion were “excellent”.
So, this led us to conclude that we weren’t sure that the Judge even read the points of the motion, as their goal is to “maintain the status quo”, and not incur the expense of a new trial. They also have incentive (which we would call a conflict of interest)
to protect the civil liability to the County for the unwarranted shooting. We believe that this is the basis for them even pursuing charges against Michael in the first place, as they knew he would be filing a lawsuit against the County and the Sheriff’sDepartment- which he has. We are currently Appealing the Jury Verdict as well as the denial of the New Trial Motion, although Appeals don’t usually have a high probability of success.
And despite a totally inaccurate Probation Report, many of the details which our Attorney had to correct “on the record” in open Court, the Judge still decided to sentence Michael according to the Probation Report recommendation.
This also despite the NAACP Legal Redress Secretary, as well as my wife and I, and several letters from his Professors at CosumnesRiverCollege (I will fax you copies of these) testifying that Michael was being very successful and constructive, in both his life and current endeavors, the Judge decided to sentence Michael to 2 years in State Prison (the D.A. wanted him to serve 3 years). This also despite the extreme overcrowding in the California State Prison System.
So, our main concern throught this process, is the issue of the “Cover Up”. In other words, a former Jail Deputy, goes out on the street for a short time, and fails to follow proper Police procedure, and shoots someone for no reason.
He receives no discipline, and the person who’s his victim is sent to State Prison and he goes free. He’s still loose on the streets, and what’s going to prevent him
from doing it again ? Then the County goes along with the “cover-up” and who’s going to stop them ? That’s why we’re looking for advocates to make them Accountable to someone !!!
Thank you for your help.
Robert and Elena Witkin