Thursday, April 09, 2009

CA: Homeless man's life left in tatters after arrest by careless police

They jumped to conclusions and didn't do a proper investigation. They deny that they breached proper procedure but they would, wouldn't they? The court didn't believe them

James “Jimmy” Fay slowly pedaled his bicycle on the sidewalk at the intersection of Gonzales Road and Rose Avenue in November. The homeless, disabled man was on his way to meet his girlfriend, who was standing across the street.

Before he could cross, the 46-year-old Fay found himself on the ground, surrounded by Oxnard Police Department officers who had guns drawn. “I thought, ‘Boy, they couldn’t be doing this for riding on the sidewalk,’ ” Fay said. He was right. The charges were much more serious and Fay’s nightmare with the law was just beginning.

He was arrested on suspicion of shooting at an occupied vehicle, assault with a deadly weapon likely to cause great bodily injury, second-degree robbery, discharging a firearm, stealing a car, grand theft and other charges. If convicted, he was looking at 30 years in prison.

On the second day after his arrest, he suffered a stroke in jail that put him in a coma. He spent 10 days at Ventura County Medical Center with a guard standing near the door. After he spent three months in jail, all charges were dismissed. A judge said there was insufficient evidence to hold him for trial.

But Fay’s life isn’t back to normal. He is partially paralyzed after the stroke, police didn’t return his bicycle, his girlfriend lost her rented room after police searched it fruitlessly, and Fay is still trying to come to terms with why authorities didn’t look closely at evidence pointing to his innocence. “I thought it was a pure nightmare,” he said. “They had me chained to the bed. Then, they came up with a walker and taught me how to walk. My left side is partially paralyzed.”

His lawyer, Russell Baker, said Fay was arrested and his bail set at $250,000 after a truck mechanic, Miguel Flores, identified Fay as one of two men who stole $2,500 worth of tools from him, rammed his pickup truck and shot at him three or four times.

Fay said the prospect of a long prison term looked like a death sentence to him. “I would have never made it out alive. I would have died from old age or another stroke.”

Fay always insisted he had nothing to do with the robbery. He cooperated with police and offered to take a polygraph test, Fay said. He had an alibi — the crimes occurred while he was with his girlfriend, Elaine Hall.

Police, however, said Fay’s prescription medication was found inside a stolen pickup truck the suspects used. Also, Flores picked Fay out of a photo lineup, according to a police report. And, Flores was certain that Fay drove the stolen truck and shot at him, said Baker, Fay’s attorney.

Yet, Fay went to court in March and after about four hours of evidence and testimony, all the charges were dismissed. Ventura County Superior Court Judge John Smiley couldn’t find enough evidence to hold him for trial, saying in part there was a “tainted” identification of Fay by the victim, according to Baker. Also, other evidence suggested Fay was innocent: None of his DNA was found inside the stolen pickup truck, and there was no gunshot residue on his hands.

Fay recalled that after his arrest, police put plastic bags on his hands to test for gunshot residue. He kept asking detectives why he was under arrest. “They said I ought to know what I did, I am not a sleepwalker,” Fay said.

One of the toughest things, said Armando Lopez, a senior investigator with the Public Defender’s Office, was convincing Hall to testify at the preliminary hearing. “She really didn’t want to come to court. She was very, very afraid,” Lopez said. “She finally came in.”

Fay’s arrest turned out to be a case of mistaken identity by Flores. Flores testified during the preliminary hearing that an officer didn’t show him Fay’s photo as part of a six-photo lineup as required. Flores said he was shown a single 1998 booking photo of Fay, contradicting a written police report about the officers’ actions. By that point, police had told Flores the prescription medication in the stolen truck belonged to Fay, and Flores told police Fay was definitely one of the suspects, according to Baker, the attorney.

Three and a half hours later at the Oxnard Police Station, Flores misidentified another man as the second suspect. Flores picked someone out of a six-person photo lineup who had a rock-solid alibi — he was in jail when the incident occurred, according to Baker.

Police Chief John Crombach said the officers didn’t do anything wrong. The chief said police looked into the incident and concluded nothing was done improperly. He said the police report states Flores was initially shown a six-photo lineup that included Fay’s photograph. Flores picked Fay out of the lineup, Crombach said. Crombach said he has a copy of the six-photo lineup shown to Flores, and it includes Fay. “We followed our investigation protocol,” the chief said. The chief said after the witness identified Fay and his prescribed medication was found inside the stolen pickup, there was enough probable cause to arrest him.

Fay strongly disagrees and blames the police for what happened. He has hired a civil lawyer to sue the city.

“It appears that Mr. Fay has suffered a grave injustice,” said attorney Brian Vogel, who is representing Fay in the civil action. “We are investigating this case and will seek to redress this serious violation of civil rights.” ....

After his arrest, Fay said police took his backpack, which contained his cell phone and a few other items, and impounded his bicycle. He said police told him it was held for 60 days and then sold or given away because it went unclaimed. “I was in jail. How could I claim it?” Fay asked.

Crombach said Fay will get all his personal belongings when the court issues an order to release them to him. Also, his bicycle was impounded, kept for 60 days and then given to a nonprofit organization, the chief said. He said Fay should contact the city of Oxnard, and they’ll make sure he gets another bicycle. “That’s the right thing to do,” the chief said.

Fay said his bicycle was parked and locked at the Shopping at the Rose shopping center on Gonzales Road when a thief stole the handle bars, which had an attached bag containing his prescription medication. Lopez checked out Fay’s story. Lopez said a store manger told him he loaned Fay money to replace his heart medicine after the handle bars were stolen.

Fay said that if Baker hadn’t done his legal work, he would still be in jail and possibly on his way to prison. “He did a great job,” Fay said. “I am so happy just to be alive and have my freedom.”

Original report here

(And don't forget your ration of Wicked Thoughts for today)

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