THE BIG BLUE GANG PROTECTING THERE OWN HERE IN OCEANSIDE CA

THE BIG BLUE GANG PROTECTING THERE OWN HERE IN OCEANSIDE CA


Defendants’ Lost Voices

By Dorian Hargrove | Published Wednesday, May 26, 2010
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On March 23, after deliberating for 40 minutes, a jury emerged from
the jury room inside the courthouse in Vista. The 12 members had
reached a verdict. As they filed into the jury box, the defendant,
Michael Shields, stood beside his attorney, David Boertje. Shields’s
heart pounded as the foreman announced the verdict: not guilty of
assault with a deadly weapon. It was a quick and easy end to a long
and difficult year.

It started on the evening of February 25, 2009, when Shields, a
licensed mortgage broker and full-time college student, was driving
his red Jeep Liberty southeast on Barnard Drive in Oceanside after
attending guitar class at MiraCosta College. According to Shields, as
he approached a man on a bicycle — later identified as Martin Rios —
Rios wove from the bike lane into the middle of the road. Shields
passed him on the right. Moments later, Shields looked in his rearview
mirror and saw Rios making an obscene hand gesture. Shields turned
right on College Boulevard and got into the left-hand turn lane at the
intersection of College and Vista Way. Traffic was backed up at the
light, and Shields began inching forward. He glanced in his rearview
mirror and saw Rios approaching on the driver’s side. As Rios pedaled
past the Jeep, he spit on the windshield, slapped the hood, then
raised his right leg to kick the fender. But, Shields said, he kicked
too late and missed, losing his balance and causing the bike to fall
in front of the car, toward the center of the vehicle. Shields jerked
the steering wheel to the left, avoiding Rios but running over the
bike’s rear tire.

Shields got out of his vehicle and Rios ran up to him. At that time, a
man pulled up on a motorcycle. He, too, was aggressive toward Shields.
The man asked Rios if he was all right. Shields said he heard the man
call Rios “Martin.” The witness then asked what Shields did for a
living. Shields said that he was a broker, and the man said, “You hear
that, Martin?”

Oceanside police officer J. Dominique arrived on the scene at 5:58
p.m. According to the police report, Officer Dominique interviewed
Rios first. Rios complained of pain in his right shoulder. The police
report indicated that he had an eight-inch-by-four-inch “scrape” on
his left thigh.

Both Rios and the witness, Trevor Hudson, claimed Shields
intentionally ran Rios down. Rios said that after the spitting
incident, Shields became angry and punched the gas, running Rios over,
dragging him across two lanes of traffic and over the center divider.

Shields told Dominique that the man on the bicycle had fallen and
Shields had swerved out of the way, hitting the bike but not the man.

After interviewing the three men, the officer determined that “Shields
had used his vehicle as a weapon.” He arrested Shields for assault
with a deadly weapon and transported him to the Oceanside Police
Department in handcuffs.

After being processed, Shields waived his Miranda rights and sat down
with Officer Dominique to give a recorded audio statement. He
described the events, and he said that after the collision, a man on a
motorcycle pulled up and immediately turned to Rios and said, “Martin,
are you okay?” In the recorded audio statement Shields said he
“thought that was weird,” that the witness knew Martin’s name.

Shields said that before he was hauled off to the detention facility
in Vista, Officer Dominique told him not to worry, that the case would
go nowhere.

Officer Dominique was wrong. Shields was charged with assault with a
deadly weapon, a felony. The one thing that went nowhere was a copy of
the recorded interview conducted by Officer Dominique. That recording
wouldn’t surface for 13 months, until two days before Shields’s trial
began.

During those 13 months, Shields often asked his lawyer, David Boertje,
about the recording. Shields assured him that the witness and the
victim were friends. How else would the witness have known Rios’s name
that day? Despite Shields’s queries, there was no evidence of the
recorded statement and there was no mention of it in the police
report, as is required.

Shields attended preliminary hearings and learned that if convicted he
could face up to four years in prison. In the following months, he
became depressed. He developed a bleeding ulcer. Most mornings he
awoke to a guttural, dry cough that caused him to run to the toilet to
vomit blood. His marriage of eight years began to fall apart. He spent
all the money he had saved for his first semester at the University of
California San Diego. He contemplated fleeing to Costa Rica. He
dropped 30 pounds. The depression became so severe that one month
before trial, Shields found himself researching suicide on the
internet. One morning he opened a bottle of Vicodin and stuffed a
handful of pills into his mouth. He held a glass of water in his hand.
Instead of chugging the water and the pills, he spit them out into the
sink.

As the trial neared, the district attorney’s office offered a plea
bargain: a one-year mandatory prison sentence and the felony charge on
Shields’s record would be lowered to a misdemeanor after three years.

On March 31, outside a coffee shop in Linda Vista, Shields and David
Boertje sat down to talk about the case. Animated and visibly upset,
Shields discussed his depression, the toll the case had taken on him,
both personally and financially, and the decision not to take the plea
bargain.

“I almost took the plea to avoid a very scary prison sentence,” said
Shields. “I stuck to my guns against the advice of my parents and
attorney. They all said the risk is too great. I knew I was innocent.”

Two days before the trial began, Boertje said, he received news from
deputy district attorney Elisabeth Silva that a notation in an
evidence log saying “audio CD” had been discovered. Silva told Boertje
that she didn’t know what was on the audio CD.

“The recorded statement should have been something that was disclosed
immediately,” Boertje said. “In the report, there was no mention of a
recorded statement, no mention that they had the tape.”

“Before they released the recording, it was basically my word against
the Oceanside police,” interjected Shields. “Who is the jury going to
believe, the police officer or the ‘baby punching’ criminal?”

At 8:30 on the morning of March 15, the first day of the trial,
Boertje went to the district attorney’s office, located one floor
above the courtroom in the North County Regional Center, to listen to
the audio CD. He confirmed that it was Shields’s missing statement.
Silva asked Boertje if his client would like to reschedule the trial.
He said no.

On the second day of trial, Officer Dominique took the stand. During
cross-examination, Boertje asked him about the audio statement. Deputy
district attorney Silva objected. The lawyers and judge met in a
sidebar. Silva indicated that she was filing a motion to exclude the
recorded statement from evidence.

“I couldn’t believe it,” said Boertje. “I said, ‘First off, you didn’t
give [the recorded statement] to me until yesterday, and now you don’t
want the jury to hear what my client said right after the incident?’
There was no basis to exclude it.”

The judge allowed the statement to be used in court. A week later,
Shields was exonerated.

“The judge in my case was completely outraged at the district
attorney,” Shields wrote to the Reader on March 23, the day of his
acquittal. “[He] scolded the District Attorney and asked her why the
audio statement was disclosed the day of trial. [Silva] claimed that
she ‘read the police officer the riot act.’… My audio statement was
crucial evidence that proved I was innocent.”

Shields, however, is not the only person arrested in Oceanside whose
recorded interview has disappeared. In April 2009, two months after
Officer Dominique interrogated Shields, Oceanside police officer Damon
Smith testified in court that he had failed to submit into evidence a
recorded statement with the defendant in a domestic violence case.

Five months later, the San Diego County district attorney’s office
released 37 undisclosed recorded statements that Smith had conducted
during a period of almost four years.

Oceanside resident Woody Higdon has followed the Officer Smith matter.
Higdon, who is middle-aged, worked as a police officer in Santa Ana
and Garden Grove for three years. Currently a government watchdog, he
is well known around Oceanside’s council chambers and police
department. He speaks at city council meetings about corruption in
Oceanside’s police department. He has submitted criminal misconduct
complaints to the district attorney’s office, the Oceanside Police
Department, and the Federal Bureau of Investigation about the handling
of the Officer Smith situation. Higdon says the fact that two
Oceanside police officers have failed to log recorded statements into
evidence shows that a departmental policy failure exists in both the
Oceanside Police Department and the district attorney’s office, which
has not addressed the situation by charging Officer Smith or Officer
Dominique for obstruction of justice and evidence tampering.

“Nothing has happened,” says Higdon. “I never got a follow-up from the
district attorney’s office or the police department.

“Now we know from the Shields case of another officer hiding
audiotapes. The officer finds out that this man was not the suspect
but the victim, and the tape goes missing for a year while the
district attorney’s office pressures this guy to cop out to a lesser
offence. They were about to put an innocent man in prison for assault
with a deadly weapon. That’s felony obstruction of justice and
evidence tampering, not to mention falsification of an official police
report.”

Higdon says he plans to file a criminal misconduct complaint against
Officer Dominique.

Paul Levikow, spokesperson for the San Diego County district
attorney’s office, says that no charges will be filed against either
Officer Smith or Officer Dominique for the incidents.

“These aren’t criminal,” said Levikow during an April 23 phone
interview. “The responsibility lands on the prosecutor to turn over
all evidence. If there’s evidence out there that the prosecutor
doesn’t know about, it is incumbent upon the prosecutor; that’s how it
works.

“We took the corrective action with Smith,” Levikow continued. “We
notified all the defense attorneys and allowed them the chance to file
an appropriate motion. Just because he had recordings that he didn’t
turn over doesn’t mean that they were germane to the case or that they
affected the outcome.”

Asked if the district attorney’s office had discussed the matter with
the Oceanside Police Department, Levikow responded, “We probably
reminded them that anytime you record a defendant in a criminal case
that it is discoverable.”

In an April 13 email, Sergeant Jeff Brandt of the Oceanside Police
Department said, “Oceanside Police Department has policies and
procedures in place with the handling of evidence in criminal cases.
The Oceanside Police Department reviewed these policies and procedures
with every member after an isolated incident was discovered regarding
the way recorded statements were being handled.

“In regards to the [Shields] case,” Sergeant Brandt continued, “the
recorded statement, along with all the other evidence was placed into
the Evidence Locker by the officer at the time of the incident
pursuant to departmental policy. Apparently, while the tape-recorded
statements had been properly placed into Evidence, due to an isolated
clerical oversight, the recorded statement was subsequently not sent
to Court along with the other evidence in the case. This oversight had
nothing to do with the officer’s handling of the evidence.”

After spending over $17,000 on bail, legal fees, private
investigators, and accident reconstruction specialists, Shields isn’t
satisfied with the excuse provided by the Oceanside Police Department.
“What happened to me could happen to anyone. This needs to go public,
and I’m shocked that I’m not the only one that has intentionally had
their recorded statement buried. If I had pled guilty, the Oceanside
Police Department would have completely gotten away with this.

“For over one year, the Oceanside Police Department buried my recorded
audio statement and denied that I ever gave one,” said Shields, his
voice beginning to quiver. “I almost lost my marriage. I thought about
suicide every day.”