Mistrial declared in Fresno officer-shooting case

A judge abruptly ended the criminal trial of two suspected gang members who got into a gunfight with a Fresno police officer after two defense lawyers accused the prosecutor of misconduct.

Defense lawyers Amy Guerra and Richard Esquivel told Judge Houry Sanderson that prosecutor Dennis Lewis withheld evidence in order to gain a tactical advantage in the trial of Ricky Burciaga and Mario Rangel.

Burciaga, 25, and Rangel, 24, are accused of starting the gunfight with officer Arthur De Leon at Cedar and Butler avenues during the early evening hours of Dec. 2, 2013. Burciaga and Rangel contend De Leon instigated the gunfight by shooting at them first.

After hearing nearly two hours of argument late Wednesday afternoon, Sanderson concluded that Lewis did not disclose evidence in a timely manner, but it was not done “maliciously or purposely.”

Though prosecutorial misconduct was unfounded, Sanderson told Lewis his presentation of the evidence was less than stellar. “It’s been layer upon layer of sloppiness,” the judge said.

Sanderson, however, found other legal grounds to declare a mistrial and dismiss the jury. Those grounds focused on the testimony of veteran Fresno police detective Andre Benson.

A mistrial caused by the prosecution is rare. Typically, mistrials are declared when a jury can’t unanimously reach a verdict in a trial.

In this case, Sanderson said it pained her to call a mistrial because lawyers, jurors and court staff had invested many hours in a trial that began three weeks ago.

In arguing for a mistrial, Guerra, who represents Burciaga, and Esquivel, who represents Rangel, contended that when Benson testified last week, he was interjecting his opinions about the evidence, instead of just stating what he observed at the crime scene.

The defense lawyers also said Benson “vouched” for De Leon’s credibility — inexcusable, they said, because it’s up to the jury to determine whether De Leon was telling the truth about his account of the shooting. (De Leon testified that the defendants shot first at him after Burciaga flashed gang signs at him.)

When defense lawyers objected to Benson’s testimony, Sanderson directed Lewis to discontinue the line of questioning.

In addition, the defense lawyers argued that Benson shouldn’t have been allowed to testify about the path of the bullets in the gunfight (testimony that supported De Leon’s account) because Benson was not designated as a prosecution expert on bullet trajectories.

In their arguments, defense lawyers told the judge they had been “sandbagged” by the prosecution because Lewis never provided any reports concerning Benson’s expert opinion.

That’s misconduct because the prosecution must turn over all evidence it plans to use in the trial, the defense lawyers said.

In addition, the defense lawyers said they recently received a report from Lewis that showed Benson had told another prosecutor about his expert opinion months before the trial.

In court, Lewis initially told Sanderson he learned of Benson’s expertise on bullet trajectory the night before the detective testified. But then he said he misspoke. He said he learned of it as the detective testified last Thursday. The prosecutor told Sanderson he was surprised to hear the testimony, but allowed Benson to continue because it helped his case.

“We were going down a rabbit hole I didn’t know the answers to,” Lewis told the judge.

Sanderson quickly criticized Lewis for breaking a general rule of thumb for any lawyer. “You don’t ask a question you don’t know the answer to. That’s Law 101.”

In arguing her point, Guerra told Sanderson that Benson “is full of it” because he has no clue about the science or the mechanics of bullet trajectory.

Esquivel said Benson’s testimony damaged the defense case because the detective essentially told the jury that defense experts on bullet trajectories “manipulated the evidence to get a specific result. The bell has been rung and it can’t be unrung,” Esquivel said.

The defense lawyers said that if Benson is designated an expert in the case, the defendants are entitled to all of the detective’s reports prior to trial, as well as his résumé of credentials to prove he has expertise in the field. Guerra told the judge that if Benson is designated an expert, she and Esquivel needed time to write a motion, called a Pitchess motion, to dig into the detective’s background.

Initially, Sanderson said she would remedy the situation by telling jurors that the prosecution had not disclosed key evidence in a timely manner. But after much consideration, Sanderson said the defendants’ right to fair trial outweighed all other concerns. She granted the mistrial to give Guerra and Esquivel time to write the Pitchess motion. In doing so, she told Lewis he can retry the defendants in front of a new jury later this year. It’s not clear whether Benson will be an expert at that trial.

This story was originally published July 9, 2015 at 1:06 PM with the headline "Mistrial declared in Fresno officer-shooting case."