09/28/2006

San Francisco judge may limit uniformed police

Jaxon Van Derbeken
Chronicle Staff Writer
Copyright 2006 The Chronicle Publishing Co.
All Rights Reserved

A San Francisco judge indicated Tuesday that she will either limit or impose an outright ban on uniformed police attending the trial of a man accused of murdering an officer two years ago, citing the possibility that jurors could be swayed toward convicting the alleged killer.

Jury selection could begin as early as today in the trial of David Hill, 23, who is accused of shooting Officer Isaac Espinoza on a Bayview district street April 10, 2004. Prosecutors say Espinoza, 29, was killed when he saw Hill acting suspiciously and tried to talk to him.

Hill's defense lawyer, Martin Sabelli, asked Superior Court Judge Carol Yaggy to bar uniformed officers from the courtroom as an "improper demonstration of solidarity'' that could frighten or pressure the jury into convicting his client.

Yaggy, citing a recent ruling by the Ninth U.S. Circuit Court of Appeals that will soon go before the Supreme Court, said she was inclined to grant Sabelli's request, or at least sharply limit the number of uniformed officers who will be allowed in court.

Yaggy said she had "grave concern about the issue'' and would at minimum instruct prosecutors not to allow "more than a small handful, if any'' uniformed officers in court.

The Ninth Circuit ruling involved a 1995 trial in San Jose in which a murder victim's relatives attended court wearing buttons with the man's face. The appeals court ruled that the buttons could have improperly influenced the jury to convict Mathew Musladin of killing his estranged wife's boyfriend, and it ordered a new trial.

The majority said the courtroom display of buttons had violated Musladin's right to "a fair trial by an impartial jury free from outside influences.'' The U.S. Supreme Court is set to hear arguments in the case next month.

Sabelli argued that the issue with uniformed officers attending Hill's trial would be the same.

The sight of a gallery filled with uniformed officers, Sabelli said, could create a fear in jurors that if they "don't convict Mr. Hill, the police aren't going to protect us.''

"My concerns are for Mr. Hill," Sabelli said. "Everyone in the SFPD thinks Mr. Hill is guilty ... of killing one of their own.''

He also asked the judge to ban anyone from wearing insignia or badges in support of Espinoza. Yaggy did not indicate Tuesday whether she would do so.

The department has a rule against uniformed officers appearing in courtrooms, unless they are testifying while on duty or have other legitimate business. The department issued a bulletin reminding officers of the rule after several dozen in uniform showed up at a 2003 court hearing for police officials who briefly faced charges of conspiring to block an investigation into a fight involving several officers and two civilians over takeout fajitas.

However, in the Hill case, officers have appeared at court hearings wearing small replica police stars with Espinoza's badge No. 64 and shirts proclaiming, "Isaac would go," in reference to Espinoza's dedication to duty. In some cases, officers in uniform have stood outside the courtroom.

Prosecutor Harry Dorfman acknowledged that although officers have the right to attend the trial, "rows and rows" of them in uniform could influence the jury. He said that to solve the problem, he would have those in uniform dispersed throughout the courtroom, so they are not standing en masse.

"I would like to speak to the department and express my concerns,'' Dorfman told Yaggy, "and we'll see when the case begins, how many uniformed officers appear.''

He said many officers would like to attend opening statements, scheduled for as early as next week, and that they have the right to do so. 
 
September 27, 2006

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