WHO WILL THE JURY BELIEVE?
Assistant U.S. attorney Mack Jenkins began his closing arguments for the latest federal trial of members of the Los Angeles Sheriff’s Department by describing what he called an “unlikely trio” of witnesses on which the government’s case depends.
“A chaplain who worked by choice for almost 20 years to help those” in Men’s Central Jail “who others forgot or wished to forget,” Jenkins said on Friday afternoon as he listed his trio. “A gang dropout marked by his own gang for death” who “had nothing to gain,” but who was a “captive front row witness,” and finally “a mentally ill” inmate who is the victim or the aggressor in this story, depending on whose account one believes.
“Three men who never met before that day, who’ve never met since that day,” said Jenkins to the rapt jury. But each of the three were bound by having experienced a “terrible thing.”
The defendants in the jail brutality case that began in federal court two weeks ago are two LASD deputies, Joey Aguiar and Mariano Ramirez, who are charged with punching, kicking, pepper spraying and whacking with a flashlight an-allegedly non-resistant former Men’s Central Jail inmate–Bret Phillips—on February 11, 2009. Aguiar and Ramirez are also charged with falsifying reports after the beating to portray Phillips as a violent, out-of-control aggressor whose actions required multiple deputies using various kinds of legal force to bring him back under control, and who should be prosecuted for his actions.
Phillips—who, according to his own testimony has been formally diagnosed as being both bipolar and schizophrenic—was not on his medication at the time.
Unlike last year’s jail brutality trial involving former department members who were convicted for brutally beating jail visitor, Gabriel Carrillo, then falsifying reports that resulted in a felony charge against their victim, this trial depends almost entirely on which group of witnesses the jury thinks is telling the truth.
In contrast, the jail visitor trial was less of a they said/they said conflict, since two of the five deputies originally charged with the beating and cover-up, agreed to testify for the government in return for a deal. Plus, the defense contended that Carrillo had never been fully handcuffed, thus had been able to assault deputies by swinging an unsecured handcuff chain attached to one wrist. The prosecution, however, had a photo of Carrillo’s hands and lower arms taken shortly after the incident, which clearly showed injuries on both wrists of the kind that over tight cuffs typically produce—visual evidence that jurors later said they found persuasive.
Yet, in this case, there was never any doubt that inmate Phillips was waist-chained and handcuffed. However, the defense argues that the cuffs and chains did not in any way deter the inmate from attempting to head butt Deputy Aguiar. Then later, when he was face down on the ground with three deputies on top of him, the “agitated” Phillips was still “violently gyrating,” and “viciously kicking” toward deputies, thus had to be struck multiple times with “personal weapons,” in other words, the deputies’ fists, then struck additional times with a standard issue flashlight, then sprayed in the face with pepper spray, and ultimately hogtied and “tarped,” each of which is another form of restraint.
“They wanted to make him a monster,” prosecutor Jenkins told the jury. “They made him the Incredible Hulk.” There were, Jenkins said, 600 lbs. worth of deputies on top of the 5’10” 158 lb. “physically frail” Phillips. “And yet they were afraid for their lives.”
STAR WITNESSES FOR THE DEFENSE
The defense too had their star witnesses, most notably Sgt. Ernie Barbosa, who was likable and calmly professional in his demeanor, and persuasive on the stand, and Deputy Renee Madrid, who also came across as calm and clear-eyed. Neither man saw the main part of the incident. Madrid gave an account of the encounter’s beginning. Barbosa described what he saw at the end. Both maintained that the force used was entirely necessary.
The other main eyewitness for the defense was retired MCJ nurse, Marjorie Roseen, but her testimony was less even, and seemed at times at odds with some of the medical reports from the 2009 use of force, and her own hand written notes.
“Is Sergeant Barbosa lying?” asked defense attorney Vicki Podberesky when it was her turn to present closing arguments. “That’s what the government wants you to think. ….The government wants you to believe that not only are Deputy Ramirez and Deputy Aguiar” lying, “but also Deputy Madrid and Sgt. Barbosa were part of the cover-up, and even Nurse Roseen.”
Defense attorney, Evan Jenness, reminded the jury that former inmate Phillips was bringing a civil lawsuit against the department. “He’s got a motive. He wants to get money.”
Jenness and Podberesky both contend that Phillips’ injuries were minor and not consistent with the vicious beating that the government’s witnesses describe. And indeed there were no fractured limbs or shattered orbitals, the eye-socket injury that has sometimes been a feature of other jail beatings. But the video shown multiple times during the trial that depicts Phillips being wheeled on a gurney toward MCJ’s medical clinic—then later being interviewed by Sgt. Barbosa,—shows a man who initially appears disoriented and groaning in pain, although the defense has portrayed the footage as visual proof that Phillips was not, in fact, all that injured.
What matters, of course, is what the jury sees.
Yet, in the end, it will likely not come down to videos and written reports, it will come down to the witnesses.
On the side of the defense there were the two sworn department members, who were intelligent and specific in their descriptions of events, and not easily rattled on the stand. (The defendants themselves declined to testify.) For the prosecution, there was “the unlikely trio.”
In brief, here are the prosecution’s three:
THE UNLIKELY TRIO
First there was Chaplain Paulino Juarez, who has been working as a Catholic chaplain at LA County’s Men’s Central Jail since 1998, who told the jury he was treated for PTSD after witnessing the beating, which at the time, he said he thought might have killed Phillips. “I saw something inexplicable,” he testified that he blurted to a fellow chaplain minutes after he witnessed the alleged beating. “Something I never expected to see. Something that should not happen at all.”
Then there was Phillips himself who said he’d been fearful of retaliation because he’d tossed milk cartons toward Deputy Aguilar earlier in the day after being left in his cell in waist chains and what he described as painfully tight handcuffs for thirty or so minutes. As for the incident itself, that occurred when Phillips was being returned from a routine visit to the medical clinic, the former inmate said he remembers nothing after having his head slammed into the wall by Aguiar and being put in a chokehold by Ramirez and passing out. Yet when he woke up, he said, he was on a gurney and felt the affects of pepper spray. He was in pain in various parts of his body from the alleged beating. And the next day, he was in far more pain, he said, to the point that walking was very difficult. By that time, he’d been transferred to “the hole” as punishment. “But the hole was better. It was safer,” he told the prosecution. “You’re by yourself.”
Finally, there was John Maestaz, 48, who is serving a 21-year sentence for voluntary manslaughter and who was bussed down from Delano state prison to testify in leg chains. A former eastside gang member, Maestaz, is in protective custody after a conflict with “my own people,” and now has a “green light,” meaning, in Mexican Mafia terms, he is marked for death.
On February 11, 2009, Maestaz said he was in the unit’s inmate shower, where there is also a payphone, talking on the phone to his wife when—like the chaplain—he witnessed what he described as a “very, very violent altercation.” When he crept next to the bars to look, he said, he saw the inmate lying flat on the ground, unresisting, while two deputies were on top of him, and later more deputies joined in. The taller deputy, said Maestaz, meaning Aguiar, had a “knee on his shoulder,” and “kept slamming” the back of Phillips head. “We call it ‘hammer fisting,’ “ he said, then demonstrated using the soft bottom of a closed fist to pound downward.
Maestaz said, at some point, he saw a shocked-looking Chaplain Juarez also watching events unfold, but that he—Maestaz—kept ducking back behind the wall of the shower cell to avoid being seen by deputies.
As for Phillips, “he was not moving. They kept hitting and hitting him.” According to Maestez, Phillips “had a blank look on his face…..he wasn’t there. He was helpless. “ Yet the deputies, said Maestaz, were shouting “stop resisting.”
Maestaz said that, until he eventually learned otherwise, he believed “I watched a man get beat to death.”
As to why he was testifying, Maestaz said, “I don’t want to be here. It goes against everything, to tell on someone. I didn’t want to testify.”
Maestaz also said that he had been promised nothing by the prosecution for his testimony.
The descriptions of events by the three prosecution witness are very similar, yet there are also inconsistencies.
So who will the jury believe?
Presumably soon we will know the answer to that question.
EDITOR’S NOTE: While trial exhibits are not yet available to the press, readers can, at least, get an idea of the testimony by Chaplain Paulino Juarez by listening to the audio of his 2012 testimony in front of the Citizen’s Commission on Jail Violence, which you can find here.
His general testimony begins at the 3:18 mark, but the testimony pertaining to the Aguiar-Ramirez case begins a few seconds after the 3:30 mark.