[Moxley Confidential] OC Jury Doesn't Quite Acquit an OC Cop. Shocker!
An Orange County prosecutor getting frustrated with a jury? Oh, right: The defendant was a cop who Tased a gangbanger suspect
I’ve witnessed strange things in my 14 years of haunting Orange County courtrooms, but the recent case of the People vs. Deputy Christopher David Hibbs held more than its share of weird moments.
Start with the fact that the case went to trial at all. District Attorney Tony Rackauckas is often criticized (particularly by Steven Greenhut at the Register) for going soft on rogue cops; here, when faced with evidence that Hibbs used his Taser on a handcuffed gangbanger suspect, the DA’s office brought excessive-force assault charges against him.
During the trial, the oddities continued: The defense lawyer glorified the deputy. The gangbanger hailed the prosecutor. The deputy bonded with the defense lawyer. The prosecutor slammed the deputy.
And, for the first time ever, I saw jurors mad-dog a deputy district attorney. Given all that, I also find it bizarre that the proceedings concluded with a hung-jury mistrial on April 14, rather than an outright acquittal.
The events of the alleged crime, as they were described in court, went like this: About 2 a.m. on a September 2007 night in Anaheim, Hibbs and the jail deputy he’s training for patrol duty, James Christopher Wicks, notice a suspicious man walking. It’s hot, and the man is wearing a black trench coat. From their patrol car, the deputies begin to question the man, who admits he’s carrying an open bottle of beer. A scuffle ensues and the man runs, dropping his coat—which holds a loaded, semiautomatic pistol in a pocket.
There’s a chase. Dan Anderson, an off-duty city of Los Angeles cop on a date at a Jack in the Box, assists. Anderson captures Ignacio Gomez Lares, a convicted felon with ties to the Mexican Mafia. Hibbs and Wicks arrive. Before they can handcuff Lares, there’s another struggle and Hibbs repeatedly Tases the noncompliant, high-on-meth suspect.
They get Lares handcuffed and into the back seat of their patrol car. But he refuses to identify himself, which angers Hibbs. The deputy curses before he activates his Taser, leans into the back of the patrol car and fires two painful high-voltage shots lasting no more than five seconds into Lares’ right inner thigh. The man screams.
Minutes later, Hibbs fails to tell his arriving supervisor about this use of force. Indeed, he never documented it. Wicks, his partner, filed an official crime report, which Hibbs reviewed for accuracy. It also didn’t mention the Tasing.
Both Hibbs and Lares would claim later they’d forgotten the second use of force. But, according to grand jury records, back at the sheriff’s department locker room after the shift, jokes among deputies included something like this: Tell me your name! Zap! Zap! Zap! Tell me your name! Zap! Zap! Zap!
Sheriff’s officials notified the DA, prosecutors went to the grand jury and an indictment was issued last fall.
After Hibbs was arrested and placed on paid administrative leave by the sheriff’s department, the mild-mannered (and, in my experience, thoughtful) Operation Desert Storm Army veteran provided a justification for the Tasing. He claimed that Lares, handcuffed behind the back and seated in the patrol car surrounded by at least four deputies, had placed a foot in the door jamb.
Hibbs said he interpreted the move as an attempt to escape or attack him. So, without even a single word of warning, he fired the Taser. The suspect’s belligerence over his identification played no role, he said, in the use of force.
In January, Robert Gazley, Hibbs’ defense attorney, told the DA’s office of Lares’ foot move, pointing out that officers in California can use force whenever they say they feel threatened and that prosecutors would lose if they went to trial. He was rebuffed.
During the trial itself, prosecutor Israel Claustro, a member of the DA’s special projects unit, grew increasingly frustrated as it appeared that Gazley’s prediction might just come true. He shook his head in disgust that jurors seemed to buy Hibbs’ late explanation. He also was annoyed that several deputies at the scene who were within feet while Lares was Tased by Hibbs either changed their stories from their grand jury testimony to the trial or caught sudden, severe cases of amnesia. On the witness stand, deputies claimed they didn’t know Hibbs had fired the Taser, which produces an unmistakably loud cracking sound when activated.
“There is a blue wall of silence,” Claustro said during his closing arguments, producing a huge graphic of a blue brick wall with a center area occupied by a man putting his vertical index finger to his lips. “I hate to talk to you about a code of silence. We don’t want to believe it happens. But it does.”
Though he challenged the testimony of Anderson, the LAPD cop, as well as Deputy Trent Hoffman, Claustro was most disturbed by “discrepancies” in Wicks’ grand jury and trial statements. For example, Wicks told the grand jury that he was shocked and saw no justification for Tasing Lares in the car. At trial, he said that he hadn’t been watching and that Hibbs likely had been justified, according to the prosecutor.
“You have borne witness by watching officers cover their eyes and close their mouths,” Claustro said. He displayed a large picture of three monkeys. “See no evil. Hear no evil. Speak no evil. . . . There was no escape attempt. . . . It was a completely manufactured justification.
“Deputy Hibbs’ conduct was horrible,” Claustro summed up. “It was torture, an abuse of power and completely uncalled for.”
As Claustro spoke, an Asian female on the front row of the jury shook her head, crossed her arms, threw her head back and stared at the ceiling.
Opposing counsel got a far more favorable jury response throughout the proceedings. Robert Gazley dominates courtrooms with his large frame and folksy style. Though clearly sharp, he seems unaware that he endlessly clicks the top of his pen when he speaks—or perhaps it’s another tool to keep a jury awake.
The panel looked like OC: two Asians, four Latinos and six whites; ages spanned the 20s to the 70s. During his closing arguments, Gazley was mad, pink-faced mad. His hands gripped the podium so intensely you could see white knuckles.
“The district attorney seeks to twist and pull an error into a crime,” Gazley declared. “Violating an employer’s policy, even if that employer is a police agency, is simply not a crime. You might think it’s counterintuitive to use a Taser on a restrained suspect, but we don’t live in the dangerous world officers do in the middle of the night.”
The Asian female juror, who looked angered by Claustro’s arguments against Hibbs, was smiling.
“Deputy Hibbs could have reasonably believed [Lares] would try to escape,” Gazley told jurors. “He did the right thing even though the suspect was handcuffed. . . . If Mr. Claustro convinces you my client is a liar, oh, by the way, that’s not a crime.”
After deliberations over three days, the final vote was 11-1 for acquittal. The judge declared a mistrial. In the hallway afterward, the Asian woman told Claustro that he’d been “reaching for straws” and that deputies have to “control situations.”
Several other jurors said they accept that a cop’s code of silence is an ugly reality. A few even said that Hibbs “probably” didn’t have real justification, but they felt they had no choice based on the deputy’s late explanation, to find that a reasonable doubt existed.
I’d be surprised if the DA’s office refiles charges. Said the 66-year-old jury foreman leaving the Fullerton courthouse after the verdict, “This case should have never been filed.”
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