Judge tosses conviction of knife-wielding man shot by Fresno police

In a rare ruling, a Fresno County Superior Court judge on Wednesday threw out a jury’s guilty verdict of attempted murder against a mentally ill man who was shot by Fresno police after he confronted an officer with a knife in September 2013.

The family of James Timmons cried in court when Judge Gary Hoff said the defendant could not have formed the specific intent to commit the crime. In general, the law requires the prosecution to prove that the defendant had a particular purpose or intent to commit the crime.

Hoff said the evidence at the trial showed that Timmons was suicidal and delusional when he confronted the officer. “He said he had to sacrifice himself,” Hoff said.

The judge also noted that Timmons never slashed at the officer with the knife or cut the officer. In addition, Timmons never said he was going to kill the officer, Hoff said.

In his ruling, Hoff said prosecutor Ryan Wells could retry Timmons, 28, on the attempted murder charge. The judge also allowed the jury’s other guilty verdict – assault on a police officer with a deadly weapon – to remain.

Afterward, Wells declined to comment, saying it’s the policy of the District Attorney’s Office not to comment on pending cases.

Marina Pincus, Timmons’ defense attorney, thanked the judge.

“It was the right ruling,” she said outside court.

During a trial in November, Pincus and Wells agreed that Timmons held a knife when he confronted Officer Eric Kong, who fired six rounds at Timmons during the early hours of Sept. 4, 2013, at an apartment complex near Sierra Vista and McKinley Avenue in east-central Fresno.

Family members had called dispatch to report that Timmons was acting strangely. In a 911 call, they thought Timmons was high on drugs.

But Pincus told the jury that a toxicology report showed no drugs in Timmons’ body. She argued that Timmons is bipolar and was delusional, hearing voices, and was incapable of forming the intent to kill or harm Kong. She said Timmons was trying to commit suicide by cop but failed.

According to Pincus, on the day of the incident, Timmons believed his mother was being held hostage and that he had to sacrifice his life to save his family.

Pincus said the family wanted to get Timmons to a hospital, so when they made the telephone call they believed they were calling for an ambulance.

Instead, officers showed up.

Seeing police, Timmons, holding a knife, charged Kong, Wells told the jury.

Kong fired his service weapon, momentarily stopping Timmons. Getting off the ground, Timmons charged again, causing Kong to trip while backing up. Kong then fired several more rounds, stopping Timmons from attacking again, Wells told the jury.

The jury heard the family’s 911 call and learned from Dr. Harold Seymour that Timmons suffers from bipolar Type 1 disorder. Timmons also testified that he was crying when he confronted police. And according to Pincus, Kong testified that Timmons never said a word and had a blank face.

After the shooting, Timmons spent nearly a year in the hospital. He lost his right leg, can no longer use his left arm and has to use a wheelchair.

In court Wednesday, Hoff noted for the record that Timmons had written an apology letter to Kong.

Wells told the judge that family members in their 911 call never mentioned Timmons had mental illness. He also said evidence of Timmons’ mental illness “is thin,” since family members, who testified in the trial, were vague about it and Seymour never diagnosed Timmons. “It was only his impression,” Wells said of Seymour’s testimony.

But Pincus said Seymour testified that people don’t always recognize mental illness “until something huge happens.” She also said Seymour concluded Timmons was mentally ill based on a number of factors, including his current medical records and the medication he is taking.

Hoff agreed, saying Timmons was suicidal when he confronted the officer. He also said the evidence showed that Timmons suffers from mental illness that was “undiagnosed and untreated” before the shooting.

This story was originally published January 27, 2016 at 3:02 PM with the headline "Judge tosses conviction of knife-wielding man shot by Fresno police."