Victim Was El Toro Marine : Decision Not to Prosecute in Fatal Fight Restudied
The Orange County district attorney’s office is reconsidering its decision not to prosecute two Cal State Fullerton football players in the beating death of an El Toro Marine last April after the release of a military report, which recommends that charges be filed.
The district attorney’s office had originally found insufficient evidence to press charges against the football players, calling the death of Marine Corps Staff Sgt. Richard W. Bottjer an “excusable homicide.”
However, a 5-month investigation by the Marine Corps Judge Advocate’s office concluded that the fistfight April 7 involving Bottjer against Carlos Siragusa and John Gibbs across the street from Baxter’s Restaurant, a popular Fullerton bar from which they had been ejected, was not fair because the Marine was outmanned and because Gibbs’ karate expertise may have amounted to use of a dangerous weapon.
The military investigation, which was conducted because Bottjer died of unnatural causes, was completed in September. County officials obtained copies of it in October.
“We have reviewed the (military) report and have conducted a couple of interviews,” Deputy Dist. Atty. Melvin Jensen said. “We haven’t changed our decision not to file charges, but obviously if we were to find something to change our minds, we would make that decision.”
He said he expects the review of the case to be completed in a few weeks.
Jensen would not detail the specific areas prosecutors are investigating, but Deputy Dist. Atty. Bryan Brown said evidence in the military report has “caused us to look at some of the facts of the case to see if we have documented them correctly.”
Ralph Bottjer, the Marine’s father and a resident of St. James, N.Y., said Friday that he hopes the military report will persuade prosecutors to file charges.
“We’ve waited so long, it’s really frustrating,” Bottjer said by telephone. “I pray to God that my son didn’t die in vain.”
Unavailable for Comment
Neither Gibbs nor Siragusa could be reached for comment.
Their attorney, Stephan A. DeSales, said Saturday that he was unaware of the conclusions of the military report but that it was unlikely prosecutors would change their decision.
“I don’t know what the military report would have that would cause anyone to change his mind about the propriety of the original decision,” he said. “This case was gone over as thoroughly as any in recent memory. It was a well-founded and courageous decision.”
Last May, both the Orange County Grand Jury and an investigator from the state attorney general’s office concurred with the district attorney’s decision not to press charges after reviewing evidence in the case.
However, the Marine Corps investigator--using the original Fullerton Police Department case report, medical and autopsy reports and video and audiotapes obtained from county officials--came to a different conclusion.
According to the military report, which was obtained by The Times, the military investigator’s opinion is based on an interpretation of the California Penal Code defining excusable homicide.
In essence, the investigator found that, based on the evidence, the actions of the football players “did not fall within the definition of excusable homicide.”
The investigator recommended that the county district attorney “re-evaluate (the case) to consider filing charges.”
The California Penal Code states that a homicide is excusable when committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon sudden combat when no undue advantage is taken, nor any dangerous weapon used, and the killing is not done in a cruel or unusual manner.
Weapon Issue Raised
Although there were no weapons used other than hands or feet, the military investigator questioned whether Gibbs’ martial arts experience would constitute a dangerous weapon under the law. Gibbs reportedly has a black or brown belt in karate.
County authorities had decided that Gibbs’ experience would not have mattered in the outcome of the fight and that there was no evidence that Bottjer had been hit with a karate chop or kicked.
But the military report quoted a martial arts expert to the effect that “the experience and training required to receive a brown belt is more than sufficient to have caused a targeted blow . . . which could result in severe damage,” and that “the power generated by a karate student’s punch is more than that of the untrained person’s kick.”
The investigator also determined that Bottjer was at a “disadvantage due to the combined weight and number of his opponents.”
Orange County officials determined after interviews that Bottjer, 30, and his friend, Marine Lance Cpl. Thomas Duran, went two-on-two against Gibbs, 22, and Siragusa, 21. Bottjer had started the original scuffle in Baxter’s and then had challenged the football players to continue the fight once they were outside, police said.
According to police accounts, Bottjer and Duran walked across the street to a parking lot next to a pizza parlor, followed by Gibbs, Siragusa and one of their friends, Reginald Lee. Bottjer squared off against Gibbs and Siragusa and threw the first punch, hitting Gibbs on the chin.
Bottjer Knocked to Ground
At that point Gibbs and Siragusa struck back almost simultaneously, knocking Bottjer to the ground with a blow to the head, according to police accounts.
But the military investigator determined that another Cal State Fullerton football player who had been in the bar, Tracey Pierce, 23, had joined Gibbs, Siragusa and Lee and that Bottjer and Duran, in fact, faced four opponents.
The investigator determined that, although there was no evidence that Pierce took part in the fight, Gibbs, Siragusa and Lee could not have known that “Pierce would refrain from the altercation.”
The investigator determined that Pierce “stayed well behind and out of the immediate vicinity of Bottjer,” but that subsequently Gibbs and Siragusa were “squared-off” with Bottjer, and Duran “squared-off” against Lee and Pierce.
“Siragusa and Gibbs were pitting their combined weight of 395 pounds against Bottjer’s 164 pounds,” the report states.
There are conflicting accounts among the participants as to who threw the first punch, but according to the military report, “impartial witnesses state that Gibbs threw the first punch.”
Bottjer, who was divorced and the father of a 3-year-old son, died as a result of cerebral hemorrhaging “from blunt-force trauma to the left side of the head and neck,” according to his death certificate.
He was declared brain dead 20 hours after the fight and his heart was later used in Orange County’s first heart transplant.
After Bottjer hit the ground, the report states, Duran grabbed Lee. Gibbs and Siragusa left the “unconscious, prostrate body of Bottjer” to join Lee in fighting Duran.
Duran Left Unconscious
The report states that Duran was left lying unconscious on the ground while Gibbs, Lee, Siragusa and Pierce “sped away from the scene.”
“The entire confrontation” the report goes on “was sudden and over quickly.”
Deputy Dist. Atty. Jensen would not characterize the military report but said: “That’s their opinion. I don’t know what they looked at or concentrated on. We looked at this very carefully and came to a conclusion based on what we had at the time.”
Relatives of the dead Marine have been critical from the beginning of how county authorities have handled the case, asserting that Bottjer has been portrayed as a “drunk who got what he deserved.”
It had been well publicized that Bottjer’s blood-alcohol level was twice the legal limit for being drunk when he was admitted to the emergency room.
Bottjer’s ex-wife, Sandy, also claimed in divorce and child custody proceedings that Bottjer had a drinking problem.
But according to the military report, “all parties involved had impaired judgment resulting from alcohol ingestion, and the altercation which ensued was directly related to the excessive consumption of alcohol.”
Bottjer’s family has claimed that prosecutors were reluctant to press charges against Gibbs and Siragusa because of their status as football players.
“It’s like the school and the athletic program were more important than anything else,” Ralph Bottjer said.
But Jensen disputed those assertions.
“I don’t see the logic there,” he said. “We have prosecuted some pretty big people. I was in the Marine Corps myself, so if I were going to come down on some side I suppose it would be on the side of the Marines, if we’re going to rank prejudices. But frankly, it is offensive that people would say we decided a case because of someone’s affiliation.”