D.A.’s Office Insists It Had a Case, Despite Jurors’ Wrath

Deputy Dist. Atty. Frank Brown said he knew that prosecutors would have a difficult time getting a jury to convict David Tollerson of trying to murder two sheriff’s deputies. Tollerson, after all, had been shot and seriously injured by one of the undercover deputies during the Sept. 13 incident.

From the beginning, Brown said, he wanted to negotiate the case out of court. The veteran prosecutor conceded that Tollerson, a 34-year-old sailor who had never been arrested before, did not deserve 22 years in prison.

Brown said he initially considered filing lesser assault charges against Tollerson, but he decided to start at attempted murder with the idea that the case would settle for less. But Tollerson, who believed he had been attacked without provocation by the deputies, refused to plead guilty to anything, and the case went to trial as an attempted murder.

It was not until March, when the Superior Court jury acquitted Tollerson of all charges, that Brown’s initial misgivings were borne out. The jurors said they concluded that Tollerson defended himself and did not intend to harm anyone. They couldn’t understand why the district attorney filed charges in the first place.

The San Diego County district attorney’s office now concedes that it made some mistakes in the case--though not in the decision to file attempted-murder charges--and has learned some lessons as a result.

‘Wasted Taxpayer Dollars’

“It’s a case I don’t like to see get a lot of publicity,” Brown said during a recent interview. “The way it went down was real unfortunate because what happened was we wasted a lot of taxpayer dollars. We didn’t get a conviction. If we did get a conviction, nothing really would have happened to him anyway. (Tollerson) got shot up so bad and he had a clean record.”

Six jurors said they were baffled by a review process in the district attorney’s office that would permit prosecutors to pursue serious criminal charges against an innocent man who was the victim of a tragic mistake by San Diego County Sheriff’s Department vice officers.

Jury foreman Jon Lindstrom said “it makes my skin crawl” to think that the district attorney’s office could even argue that Tollerson tried to kill the deputies. He said he does not believe “the system worked and justice was done” even now that the jury has cleared Tollerson.

By Tollerson’s account, he and his fiancee, Donna McKittrick, were talking outside Brannen’s Place in Santee about 1 a.m. on Sept. 13 when two men jumped Tollerson and shot him. The couple said they had no idea that the men were sheriff’s deputies until after Tollerson was wounded and handcuffed.

The four members of the sheriff’s vice squad provided conflicting accounts of the shooting and the mayhem that followed that night. Sgt. Gordon Brooke and Deputy Michael Moreno testified that they walked to within five feet of Tollerson, who had what they thought was a submachine gun in his hand, and repeatedly announced that they were sheriff’s deputies.

Deputy’s Account

Moreno said he stuck his revolver in Tollerson’s face, and Tollerson reacted by dropping the plastic squirt gun he had and grabbing Moreno’s hand. As Moreno and Tollerson struggled briefly with Moreno’s revolver, Brooke put his gun in Tollerson’s gut and squeezed the trigger twice. One bullet went through Tollerson’s stomach; the other misfired.

After the incident, the deputies informed sheriff’s supervisors and investigators at the scene that they had been drinking that night, but no alcohol tests were taken on the officers. A sample of Tollerson’s blood showed that he was intoxicated.

Jurors who evaluated the vice officers’ testimony concluded that Brooke’s story varied so much from the account of other witnesses that the sergeant could not have been telling the truth. They said they were troubled by the contradictions, particularly the officers’ claims that they identified themselves repeatedly and held out their badges.

Officials in the district attorney’s office rejected criticism from the jurors about the decision to file charges against Tollerson. Nevertheless, they said they have learned two lessons from the Tollerson case:

First, supervisors in the district attorney’s office said they were unaware that prosecutors assigned to the Tollerson case had doubts about seeking attempted-murder charges. Chief Deputy Dist. Atty. Brian Michaels said the DA’s office will improve channels of communication between front-line prosecutors and their supervisors while deciding how to proceed with cases.

Unit to Review Shootings

Second, all future shootings involving law enforcement personnel will be reviewed by the DA’s special operations unit. In the Tollerson case, Brown was asked both to determine whether Brooke’s shooting was justified and whether Tollerson should face criminal charges. In doing so, Brown neglected to send a letter notifying Sheriff John Duffy of his findings, a routine practice for all officer-involved shootings reviewed by the district attorney’s office.

“Everything, no matter how clean the police shooting, no matter how obvious the thing might be, everything is going to special operations,” district attorney’s office spokesman Steve Casey said. “That is now changed in the wake of this to make sure everything gets done in a uniform fashion.”

Michaels said it is “sort or irrelevant with 20/20 hindsight” to debate the Tollerson case. He described the case as “a credibility contest” in which the prosecution believed the account furnished by the sheriff’s deputies--despite the numerous contradictions contained in their statements--and the jury chose to believe Tollerson’s story.

“A struggle ensued in which one of the officers could easily have been killed. . . . My goodness, if that isn’t to go before the jury as an extremely serious (case) . . . then policemen wouldn’t have any rights, either,” Michaels said. “I guess we’re just supposed to let them go out there and, if they get involved like that, then say, ‘Well, sorry pal, you’re going to be prosecuted even though that guy may have tried to kill you.’ ”

Prosecutors’ Case Weak

Nelson Brav, Tollerson’s defense attorney, said prosecutors should have known they did not have a case against Tollerson after reviewing the officers’ reports and sitting through the preliminary hearing.

“One gets the feeling they filed charges against David Tollerson to protect the officers because, if they can get a conviction, that can very well undercut a civil claim,” Brav said. “It says Tollerson is then the wrongdoer. The implication is that the officers are acting properly. That is not the case here.”

Brav contends that prosecutors filed attempted-murder charges to scare Tollerson into pleading guilty to a lesser offense.

“One of the things I admired most about (Tollerson) was his strength to say, ‘I didn’t do anything wrong and I’m not going to plead guilty to a felony and say I did,’ ” Brav said.

The district attorney’s office initially assigned the Tollerson case to Frank Brown, a veteran prosecutor and former San Diego police officer. Brown said that Sheriff’s Department homicide detective David Decker, a friend and former partner of Brooke’s, urged prosecutors to file attempted-murder charges against Tollerson.

Case ‘Was Not a Loser’

“Part of my job is to determine the likelihood of a conviction,” Brown said. “We can’t be chasing butterflies when we’re supposed to be hunting bear. Some cases on their faces are losers. This Tollerson case was difficult in the beginning, but it was not a loser, in my opinion.”

Brown was given the dual responsibility of deciding whether the shooting by Brooke was justifiable and whether Tollerson should face criminal charges. He said that Brooke acted reasonably when he shot Tollerson.

The son of a police officer, Brown said he understands the “cop mentality.” He said he can easily see how two experienced vice officers would confront a man they believed had a machine gun and tell him to drop it without taking any cover to protect themselves.

“I can tell you that police officers do all kinds of crazy things,” Brown said. “They get involved in high-speed chases . . . they’ve got to have a little twist to them . . . I’m damned sure not going to . . . approach (somebody) outside a bar who has a Mac 10 and say, ‘Is that real?’

“Why aren’t you out there doing that in the middle of the night?” Brown asked a reporter. “Because you’re not crazy. These guys are. They are out there doing this Rambo stuff. These guys are different. They’re cops. I can see a cop doing something like that . . . they’re invisible, they’re bulletproof. The whole thing is this macho thing. They’re a different breed. That is consistent with the macho cop profile, ‘Miami Vice’ stuff.”

Brown said he initially believed it would be difficult to convince jurors of attempted-murder charges in the case because the crime requires that Tollerson specifically intended to kill the deputies.

‘Hard for Jury to Swallow’

“I think attempted murder is hard for a jury to swallow,” he said. “As soon as you say murder in front of a jury, it’s a big deal. If you say assault with a deadly weapon, that’s not that bad. . . . I think you have to look toward winning. You can’t sell something that is overcharged or a bit much.”

Brown said he was concerned about the prosecution’s chances of convicting Tollerson because he saw a number of problems with the case.

“These vice officers don’t look like a bunch of choir guys,” Brown said. “You see a guy that is well-muscled and has got an 18-inch neck (and) it’s hard to imagine that he was fighting with his life with this cute little sailor in his uniform. I saw that early in the case. There were going to be problems with appearances.

“Here you have a young sailor, a fine guy, just a gentleman. He always appeared in a uniform and he did all the squeaky-clean stuff that Nelson Brav told him to do. . . . If you have a guy looking like Richie Cunningham, it’s difficult to convict him in front of a jury, no matter what the charge.”

Brown said he preferred charging Tollerson with a a general intent crime of assault with a deadly weapon.

Karen Walter, the deputy district attorney who tried the case, said in a brief telephone interview that she also felt the evidence warranted a strong assault case. She declined to discuss why the district attorney’s office tried to convict Tollerson of attempted murder.

“That is astounding that they are willing to admit this is not an attempted-murder case, but they were willing to argue in front of a jury that it is,” Brav said. “Attempted murder carries up to 11 years in the state penitentiary. That’s galling. That’s ethically inappropriate. That is frightening.”

Assault Charges Considered

In a subsequent interview, Brown denied that he told a reporter he originally intended to file assault charges.

But Brav said that Brown told him on Sept. 25 that prosecutors had decided to file a felony assault charge against Tollerson. The next day, Brav said, Brown told him that he had changed his mind and the DA’s office was going to file two counts of attempted murder.

Brown said he changed his thinking after conferring with Deputy Dist. Atty. James Pippin, who argued that Tollerson tried to kill the vice officers based on their statements that Tollerson attempted to squeeze Deputy Moreno’s fingers on the trigger as the gun passed by the two officers. Pippin did not return phone calls to his office.

Brown said he still felt attempted murder would be “very difficult” to prove to a jury.

“I called Nelson Brav and told him, ‘I’m going to file attempted murder. I’m not saying it’s attempt murder . . . Please take this to mean it’s a beginning point and I think the case will settle far below this,’ ” Brown recalled.

“I was quite frankly distressed that Nelson (Brav) wasn’t more flexible on it,” Brown said. “I think we could have settled it if it was another appointed lawyer . . . I know I went as far as I possibly could out on a limb to settle this case in a way that should have been accepted by the defense.”

Could Have Lost Navy Career

If Tollerson had agreed to the prosecution’s offer of felony assault, he could have spent time in jail and lost his Navy career, Brav said.

“Not only did they shoot him, they forced him through a 2 1/2-week trial costing him tremendous expense and emotional travail,” Brav said. “And then they wanted him to plead guilty. I find that outrageous.”

On the day before Tollerson’s trial began March 11, the district attorney’s office assigned Karen Walter to fill in for Brown, who had been reassigned as a supervisor in the Municipal Court division several weeks earlier. Several prosecutors who asked not to be identified called it “inexcusable” and “disgraceful” for the district attorney’s office to reassign prosecution of an attempted-murder case at the last minute.

“Many of the cases are given to our deputies when we are in that transition period and we are trying to cover things,” said Chuck Nickel, chief of the DA’s superior division who reassigned the Tollerson case. “Some of our cases amount to a day’s notice. That is unfortunate. I don’t like it but it works that way.”

Walter declined to discuss her assignment to the case. Several jurors said they felt the prosecutor was saddled with an impossible task.

“The prosecutor, to me, did her job,” juror Michael Assennato said. “I don’t think her heart was in it. To me, she was almost giving out the message that she was doing this because she had to.”