Attorney Seeks Dismissal of Charges Against Tyberg

A defense attorney for Charles Tyberg, the deputy sheriff’s son whose conviction on a first-degree murder charge was overturned by a state appellate court, now wants the charges against him dismissed for lack of evidence.

Attorney Clancy Haynes of Santa Ana contends that the only evidence presented at a preliminary hearing three years ago to link Tyberg to the February, 1983, shooting of a San Diego police officer was the youth’s confession, which now has been ruled inadmissible.

The 4th District Court of Appeal threw out Tyberg’s conviction in June, saying the confession had been obtained by San Diego homicide detectives through deception. At one point an officer told the youth, then 16, “we’re here to help ya.”

A hearing is scheduled Dec. 4 in San Diego County Superior Court on Haynes’ request to have the case dismissed.

Even if Haynes prevails, prosecutors intend to refile charges against Tyberg, 20, who in his first trial admitted shooting Officer Kirk Johnson but claimed he fired in a moment of panic.

But a second preliminary hearing would give defense lawyers another chance to defeat prosecution efforts to have Tyberg bound over for trial. And the prosecution’s back would be against a wall: if the charges were dismissed a second time for some procedural defect, they could not be refiled and Tyberg would go free.

Deputy Dist. Atty. Paul Morley said Friday that he will argue the initial order that Tyberg stand trial following a June, 1983, preliminary hearing was proper, despite the appellate court’s later objections to Tyberg’s confession. The standards for evidence at preliminary hearings are less stringent than those that govern trials, he said.

Meanwhile, the defense and prosecution are waging a secondary battle over the locale for Tyberg’s retrial, should it come about.

Currently, the case is set for retrial Feb. 17 in Orange County, where Tyberg’s first trial was held because of widespread publicity in San Diego County.

The district attorney’s office wants the case returned to San Diego. Haynes not only wants any retrial held in Orange County, but said Friday he plans to ask the appellate court to move to Orange County the hearing next month on his request for a dismissal.

Haynes successfully defended Tyberg on a charge of sexually assaulting another youth at the Orange County Jail, where Tyberg was awaiting transfer to state prison to begin serving a 27-year to life sentence following his conviction.

An Orange County judge recently appointed Haynes to replace San Diego public defender Jack Campbell as Tyberg’s lawyer in the murder case.

Haynes and Campbell said they were under a gag order that prevented them from explaining the change of lawyers. But attorney Paul Bell, who represents Tyberg in appellate matters, said Friday that the change was made at Tyberg’s request.

It was in February, 1983, when Tyberg strapped on his father’s .357 magnum revolver, put on his uniform shirt and badge, climbed into his sheriff’s patrol car with two young friends and went for a midnight joy ride in San Clemente Canyon.

When Johnson, 26, parked his police cruiser alongside the car, Tyberg fired at him six times. Five bullets struck and killed the three-year police veteran.