Metropolitan News-Enterprise


Wednesday, July 5, 2017


Page 3


Court of Appeal Declares:

African American Male Robbery Defendant Wasn’t Prejudiced By Barring Mention of Publicized Police Shootings

Lawyer Sought to Show Client’s Acquiescence to Police Reflected Fear, Not Consciousness Of Guilt; Panel Says the Point Was Made Without Need to Refer to Unrelated Cases


By a MetNews Staff Writer


The Court of Appeal for this district has rejected the contention of a man who was convicted of residential burglary that the judge wrongfully barred his lawyer from talking to jurors about three nationally publicized cases of police fatally shooting persons who, like the defendant, were African-American males.

The lawyer, in closing arguments, was seeking to dissuade jurors from inferring guilt from the actions of her client, Leroy Roberts, after a patrol car of the Alhambra Police Department pulled up behind the gray sedan in which he was sitting, which was parked by the scene of a residential burglary that police had just received word was in progress. Roberts opened the passenger door, tossed a screwdriver out, alighted from the vehicle and obeyed the command of Sergeant Tai Seki that he get on the ground.

These acts might be portrayed by the prosecutor, the defense lawyer told jurors, as “signs of consciousness of guilt,” and that Roberts “gave himself up because he was guilty.”

She continued:

“Certainly, there’s another explanation for that.”

The lawyer declared that this is “the age of”—and mentioned, by name, three African Americans who were unarmed when shot and killed by police.

Judge Moses’s Ruling

Los Angeles Superior Court Judge Jared Moses interrupted, sustaining his own objection, on relevancy grounds, and told jurors to disregard what they had heard.

The lawyer continued with her argument, explaining that because Roberts “was an African American male,” he “was fearful of being shot, or... he was fearful of being harmed,” adding:

“And, certainly, from my questions with Sergeant Seki there, the screwdriver could possibly be used as a weapon. So part of the thinking is do I want to be caught with something that could be perceived—not as a screwdriver used to screw in…screws [but] as a weapon, you toss that thing out.”

The persons the lawyer identified as having been killed by police were Tamir Rice, Walter Scott, and Michael Brown.

Rice, 12, was shot in a city park in Cleveland on Nov. 22, 2014, while pointing a gun (later determined to have been a toy), and died the following day. The shooting of Scott, 50, occurred on April 4, 2015, in North Charleston, South Carolina, and the officer pled guilty in federal court to civil rights violations, resulting in state murder charges being dropped. It was in Ferguson, Missouri, that Brown, 18, was fired upon on Aug. 9, 2014, while walking toward a police officer, following an altercation.

Dunning Explains Affirmance

Affirmance of Roberts’ conviction came Friday, in an opinion that was not certified for publication. Orange Superior Court Judge Kim Dunning, sitting on assignment to Div. Five, authored it.

She wrote:

“Defendant contends the trial court abused its discretion when it prevented his attorney from discussing by name three highly-publicized cases involving police shootings of young African-American males. According to defendant, the three police shootings were matters of common knowledge and historical fact that his counsel should have been able to discuss and present as an alternative explanation for defendant’s decision to toss the screwdriver from the car, exit the vehicle, and comply with Sergeant Seki’s commands.

“The challenge to the trial court’s ruling overlooks the fact that defense counsel did argue defendant’s decision to toss the screwdriver, exit the vehicle, and submit to police authority had nothing to do with consciousness of guilt and everything to do with a reasonable fear the officer might shoot him or consider him to be armed or aggressive because he was a young African-American male. Defendant has failed to demonstrate that his attorney’s inability to cite unrelated cases by name in any way diminished counsel’s ability to proffer an explanation for his conduct.”

Dunning went on to say:

“Moreover, the trial court’s ruling based on relevance was correct on the merits. Defendant presented no evidence at trial from which the jury could have reasonably inferred he was aware of the facts or circumstances of the three shootings, much less that his conduct in throwing the screwdriver and then submitting to police authority was a direct response to those shootings.”

The case is People v. Roberts, B279633.

Madera attorney Matthew D. Alger, under appointment by the Court of Appeal, represented Roberts. Deputy Attorney General Michael C. Keller argued for affirmance.


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