General Crime

* District Attorney Dolores Carr Will Not File Charges Against San Jose Police Officers

District Attorney Dolores Carr announced today she will not file charges against San Jose police officers for alleged excessive force used to arrest suspect Phuong Ho.

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The Santa Clara County District Attorney’s Office today announced that charges will not be filed against four officers involved in the violent arrest of San Jose State University student Phuong Ho last September. At a news conference this morning, District Attorney Dolores Carr said there was insufficient evidence to convict Officers Kenneth Siegel, Steven Payne Jr., Jerome Smith and Gabriel Reyes. The officers were captured on a cell phone camera using a baton and Taser stun gun to control and arrest Ho, a 21-year-old Vietnamese exchange student, at San Jose State University on Sept. 3, 2009. The officers had responded to a report of a man brandishing a knife at one of his roommates at their home in the 100 block of South 23rd Street.Ho suffered minor injuries and was arrested following the confrontation. A criminal investigation was launched into the officers’ conduct after the video surfaced.
The district attorney’s office concluded its investigation on Feb. 19 and four days later dismissed misdemeanor charges against Ho, of brandishing a deadly weapon and resisting, delaying or obstructing a peace officer. Glenn Miller, an attorney for Ho, said dismissing those charges was “the right thing to do” and that all Ho wants to do now is return to an
anonymous life.Carr and Supervising Deputy District Attorney Lane Liroff, who investigated the case, announced their decision and released the results of the investigation, bound in a thick, comprehensive report.Carr said she believes a jury would not convict the officers based on the evidence. She said that conclusion was based on a $20,000 investigation by a
team of experts comprised of former police officers, who evaluated forensic analysis of the baton, an enhanced version of the cell phone video, and interviewed witnesses.”This was a very difficult case to evaluate,” she said, adding, “There are details we still cannot reconcile completely.”Carr said one of the challenges in the case was receiving contradictory witness statements and evaluating a poor-quality video. She said the investigation did prove, however, that Ho’s accusations that several officers used a baton were false and that two of the three experts believe use of force was justified. “A jury would find that 13 baton strikes in 45 seconds was reasonable,” Carr said, adding that the baton strikes were intermittent and
ceased after Ho was handcuffed.Carr also briefly alluded to an incident three months prior to the September confrontation in which Ho was involved in a violent argument with a roommate. Liroff said that although he found the video difficult to comprehend because of its poor quality, he realized it was the key to the investigation and hired a crime scene analyst to enhance the quality and create slides simulating Ho’s position throughout the two-minute, 15-second video. Liroff also discussed the legality of use of force by police, stating that although it depends on reasonableness, “reasonableness is an inexact yardstick.”He said the officers in this incident had probable cause to arrest Ho and that by law, Ho had to submit to the arrest. Miller said he was not involved in the criminal investigation, but that by mid-April plans to file a lawsuit against the city of San Jose seeking $6 million for violation of Ho’s civil rights.

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