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REGION: Convicting officer may prove tough, experts say
Ex-DA: Police given 'deference' by juries
By TERI FIGUEROA - Staff Writer | ∞
San Diego police Officer Frank White stands with his attorney, Richard Pinckard, during his arraignment in Vista Superior Court on Tuesday. (Photo by Hayne Palmour IV - Staff Photographer) Legal professionals said Wednesday that it will be tough to get a guilty verdict in the case against the first police officer charged in San Diego County in more than a dozen years for shooting a perceived aggressor.
Experts said Wednesday that jurors tend to go easy when it is a policeman sitting in the defendant's chair. And claims of self-defense are likely to play a big role, they agreed. But it also will matter that a child was shot.
San Diego police Officer Frank White was criminally charged this week with shooting a woman and her 8-year-old child after a road-rage confrontation on March 15 that ended in an Oceanside shopping center.
White, who was off-duty, out of uniform and in his personal car when he fired his gun, pleaded not guilty to two charges, one felony and one misdemeanor in Vista Superior Court this week. The charges and allegations against White could mean a maximum sentence of nine years.
The driver of the other car, Rachel Leann Silva, was shot twice in the arm. Her son, Johnny, who was in the front passenger's seat, was hit once in a leg.
Silva also faces charges for allegedly escalating the clash, and has pleaded not guilty to felony child endangerment and a list of misdemeanors, including drunken driving.
The two cases will be tried before different juries. And in White's case, his status as a police officer will be hard for a jury to ignore, legal experts said.
"Typically, jurors give great deference to police officers who are confronted with situations happening very quickly," former San Diego County District Attorney Paul Pfingst said Wednesday. "It is extremely challenging to have a police officer convicted under those circumstances."
Pfingst is no stranger to the issue. In 1996, while he was serving as the county's top prosecutor, his office put a San Diego police officer on trial for shooting a fleeing suspect. It took the jury mere moments to acquit the officer.
The most serious charge facing White is a felony count that he discharged his firearm in a grossly negligent manner.
Gross negligence is behavior that is so different from the way an ordinary careful person would act in the same situation that the act amounts to a disregard for human life or an indifference to the consequences. Such is the definition generally given to jurors for the charge White faces.
"One thing that favors the prosecution was the fact that a child was shot," Pfingst said. "A jury is going to be mindful of the fact that a child could have died."
Under the law, prosecutors must prove that White was not acting in self-defense.
Investigators have said White told them he fired because he feared for his safety and that of his wife, who was in the car with him, after Silva began aggressively pursing him in a parking lot after a road-rage clash. Before the shooting started, White's wife called 911.
"The issue at the end of the day will come down to whether he was defending himself," Pfingst said.
According to court filings, witnesses saw Silva cut off White's car on Old Grove Road, and he had to swerve out of the right lane to avoid a crash. Less than half a block later, he turned right into a shopping center. Silva, who was heading to the left-turn lane, suddenly cut across the road and got behind White.
She is alleged to have followed him as he drove through the parking lot, tailgating him and revving her engine.
According to court filings, White stopped, and Silva pulled up alongside him. He reversed, she followed suit, dinging his car. He pulled up his gun. She backed up and he pulled the trigger, according to court filings.
Authorities have said that when White fired the gun, his car window was rolled up, and he fired through it.
"All of this will turn on who believes what about the facts," said Professor Charles Whitebread of the University of Southern California's Gould School of Law.
Whitebread said that if there is no reasonable belief that Silva's actions represented a deadly threat, there can be no viable claim of self-defense.
What matters, he said, is whether a reasonable person would have drawn the conclusion that a deadly threat existed.
"It's not just what he (White) thought, but what you or I would have thought," Whitebread said.
Whether White identified himself as a police officer, and how he did so, may also be important to a jury.
A court document filed in June in support of a warrant for Silva's arrest states that White said he identified himself as a policeman when he pointed his gun, and that Silva, in a 911 call she made during the confrontation, told a dispatcher the shooter was a police officer.
If White was confident that Silva knew he was a policeman, yet still behaved in what could be perceived as an irrational manner, that could have influenced White's assessment of his risk in the situation, and bolster a self-defense claim, Pfingst said.
But it is also notable, Pfingst said, that the state attorney general's office, which by agreement is handling Silva's case, found "insufficient evidence" to charge Silva with anything related to striking White's car with her own.
White's position as a police officer cuts both ways, said a Thomas Jefferson School of Law professor, David Steinberg. Jurors may expect that he is better trained to deal with confrontation.
"Ultimately, this is a straight question of fact for a jury," Steinberg said. "They will have to make the determination of what happened."
Contact staff writer Teri Figueroa at (760) 740-5442 or tfigueroa@nctimes.com.
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Gringo wrote on Jul 30, 2008 9:31 PM:Their just following procedure. Of course he'll never be charged.
Hatch in Escondido wrote on Jul 31, 2008 6:33 AM:Teri Figueroa, good reporting. I especially appreciated the inputs from Pfingst and Whitebread.
This is one where I want to hear what a jury says. Being strongly pro-law enforcement, I want White vindicated ASAP- if found innocent.
dillin wrote on Jul 31, 2008 6:48 AM:north county times ... if u post against the cop they will not post it.im stopping my paper thats not reporting
Never Say Never wrote on Jul 31, 2008 7:03 AM:TO ESTEBAN & GRINGO ... With all the stupidity in the world I would think you would both know better than to ever say never.
Without saying which side of this mess I come down on (not enough facts) ... Just because something is improbable doesn't mean it's impossible.
If he was a civilian wrote on Jul 31, 2008 7:26 AM:would they have a different procedure to try him on? If not then let the trial go on. But if they have two different ways to try him on, one for an office and one for a civilan, then there will be trouble.
Same for all wrote on Jul 31, 2008 9:21 AM:We should all have the right to shoot each other during a road rage incident. If somebody bumps your car in a parking lot, just shoot them and any children passengers. If they happen to be an off-duty cop with a kid on board, too bad. Just defending ourselves, right?
Billy wrote on Jul 31, 2008 9:49 AM:I always implement one element of my training, if thrust into a chaotic situation such as this. "Retreat and seek cover", has always worked well for me, I must say. I seriously doubt any seasoned law enforcement professional would have gotten themselves into a mess such as this. In fact you will never read about the 'near-misses' that have heppened in hundreds of off duty scenarios, much like this. In all honesty, they were BOTH wrong.
jerry wrote on Jul 31, 2008 9:53 AM:in my eyes this whole situation was good for everybody(other than the kid who was shot)it got some dumbass girl in trouble and it got a trigger happy "peace officer" hopefully thrown off the force.
Floyd wrote on Jul 31, 2008 10:21 AM:The deadly weapon in this case is the gun in the officer's hand, not the car that was backing away.
Osider wrote on Jul 31, 2008 10:32 AM:Can you say mistrial? We all knew this was going to happen. This is just going thru all the procudures with nothing happening to this roque cop. We need to send a message to all law enforcement that this type of conduct is not acceptable in anyway, form or fashion. My question still stands, "WHY DIDN'T OPD TEST THIS COP FOR SUBSTANCE'S?".
Bogie wrote on Jul 31, 2008 10:50 AM:Okay last time, please let us all wait to form a final opinion until the facts come out. Regardless of the jury verdict all of your opinions will be a much more accurate after the trial. I will be very interested in the blogs after the verdict. At that time I will vent my opinion.
Bad Habit wrote on Jul 31, 2008 11:03 AM:This is good news for White. He will have a jury hear all the facts and not speculations as to what happened that evening then all the doubters will have no one to blame because a jury absolved him of any wrong doing. The truth can finally come out.
Rules of Engagement wrote on Jul 31, 2008 11:15 AM:Shooting through a closed window when there's no weapon in sight wouldn't fly in Baghdad, why should it for a police officer in Oceanside? Does anyone seriously believe he couldn't out maneuver her in his car? Don't Police take driving lessons on how to handle this sort of situation?
myra wrote on Jul 31, 2008 11:16 AM:the fact that he is a police officer does not change the fact that he was off duty. This was not a case of excessive force, yet a case of an unexperienced gun carrier.
to chief and allen wrote on Jul 31, 2008 12:24 PM:you have made up your minds and you don't even know the facts yet. Nice! You people are pathetic. Don't confuse you people with the facts it might get in the way of your altered reality. We can't make up our minds till we have all the facts,not the info that the police or the defense gives us right now but what is presented to the jury.
Mark wrote on Jul 31, 2008 12:36 PM:Yes I have made up my mind that the guy is a ... But it's only my opinion and nothing more.
For OSIDER wrote on Jul 31, 2008 12:36 PM:To test for substances, you must have articulable facts which amount to 'probable cause' for these things. You can't just drug test anyone and everyone because you want to. I can guarantee that if the off-duty cop appeared impaired, he most certainly would have been tested. BUT, it should have been done anyway, simply because two human beings were shot. In fact, future policy should demand it after all shootings on or off duty. Maybe some good will come of this court case. Pilots are tested whenever they have an incident, so why not cops? I just don't think anyone was at fault for not doing so in this case. Let our legal system run its' course......
To rules of engagement wrote on Jul 31, 2008 12:45 PM:Maybe you should spend time in Iraq, as it seems you dont know the rules of engagement. I've been there 3 times, and lived to tell about it. Why? Shooting at a vehicle IS authorized...its the circumsatnces surrounding the vehicle's actions that are important. If I see a flying bomb coming at my troops, I'm not going to "look for a weapon" before I fire on the threat. That kind of thinking gets you killed, and obviously this Officer had that same training not to get himself killed by second guessing what was in the vehicle. Could've been an SUV full of thugs after him for all he knew.
prediction wrote on Jul 31, 2008 12:55 PM:My prediction is White will have this knocked down to a misdemeanor after the election with a suspended sentence, and He’ll loose his job……
bogie wrote on Jul 31, 2008 1:12 PM:Thanks for the voice of experience "To rules of engagement". I'm sure that this will be "part" of the evidence presented.
bogie wrote on Jul 31, 2008 1:15 PM:A big oops on my last post. First and foremost I want to Thank You " To rules of engagement" and all your friends/buddies for your supreme sacrifice.
Dude wrote on Jul 31, 2008 1:18 PM:White will walk but I sure hope the SDPD fires him (and the dog killer too)
CHIEF wrote on Jul 31, 2008 2:32 PM:Let me clarify for the hard headed...I would have no problem convicting this guy cop or no cop. He used deadly force against an unarmed women. You can't use the defense that he was afraid of her car its fact that she was in reverse backing away.
Bad Habit wrote on Jul 31, 2008 2:58 PM:To Chief - what are you a Chief of? Do you have access to the investigation to be able to make up your mind as to what really happened that night? I hope that if I ever go before a jury they take time to hear all the facts before making a decision about me.
RG wrote on Jul 31, 2008 3:17 PM:Yeah, I know all the facts are not in. There are two published facts however, that make it look bad for White. 1) It's extremely rare for the SD DA to bring charges against a cop. Since it was done in this case, there has to be pretty good evidence to support it. 2) The California AG said there was no evidence to charge Silva with intentional assault on White or anyone else. So a defense that he feared for his life because she used a deadly weapon (car) to ram his car is pretty weak. I'm not saying he won't get away with it. He probably will, but ONLY because he's a cop.
cbad wrote on Jul 31, 2008 6:36 PM:Well Chief I'm sure that I won't be able to change your opinion but...In this Officer's mind he really thought he was in immediate danger. He used deadly force to prevent the woman from killing him or his wife by crashing into them. I'm sure that in your career you have seen numerous fatal traffic collisions. They happen. I know that there were several decisions that were made that could have been better thought out. Do you think this was a crime or just bad decision making? I am sure that in the tunnel vision moment he did not see the kid in the car. It was smart to shoot her while she was backing away, it's like shooting a gunman while he is reloading!
To cbad wrote on Jul 31, 2008 7:07 PM:You say "In this Officer's mind he really thought he was in immediate danger."
I ask ... how do you know? Are you Officer White? Maybe you have permission and authority to speak for him? Could you be his lawyer? How exactly do you know what 'he really thought'?
Just curious.
White can... wrote on Jul 31, 2008 9:03 PM:come work for me when he gets out... I'll have him pick up pet waste at the local parks....
RG wrote on Jul 31, 2008 9:08 PM:cbad at 6:36PM says "He used deadly force to prevent the woman from killing him or his wife by crashing into them".
Gee, cbad, that's very good. That "fact" got right past the California AG who didn't see it! Wow, you're good at getting to the facts way ahead of the AG and SD District Attorney! And your statement: "It was smart to shoot her while she was backing away". That's another good one that shows superior analysis! Got any more for us?
Retreat is for Frenchmen wrote on Aug 4, 2008 3:45 PM:Billy
[-] wrote on Jul 31, 2008 9:49 AM:I always implement one element of my training, if thrust into a chaotic situation such as this. "Retreat and seek cover", has always worked well for me, I must say. I seriously doubt any seasoned law enforcement professional would have gotten themselves into a mess such as this.
That's a good choice, Miss. You obviously know your limitations. You're definitely better off in the rear with the gear.
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