Monday, Jun. 16, 2008

Murder case irregularities claimed in killing of CHP officer

Judge to hear motions on gun residue, other issues

When the Stanislaus County district attorney's office presented its case against a Stockton man accused of killing a California Highway Patrol officer to a grand jury last year, a forensic expert talked about 176 metallic particles found on the suspect's clothing, hands and cell phone.

The scientist said four of the particles -- two on each of Columbus Allen Jr. II's hands -- were consistent with the defendant firing a gun, then washing his hands.

She also explained that experts in her field classify a substance as "consistent with" gunshot residue if they detect lead, barium and antimony fused by heat.

Later, as a prosecutor argued that Allen should be held for trial in a case in which a murder conviction could result in a death sentence, the prosecutor took things a step further.

"I respectfully disagree with her," Chief Deputy District Attorney Alan Cassidy said, according to a transcript of the three-day proceeding, which was held behind closed doors. "When you have two elements combined under high heat, with no other tag elements, it can be only one thing, gunshot residue."

Allen's attorneys now argue that the prosecutor exceeded the bounds of accepted science, making a grand jury indictment deficient.

Stanislaus County Superior Court Judge Nancy Ashley on Tuesday is expected to hear arguments about gunshot residue, and 18 other alleged irregularities, when she considers a defense motion that seeks to dismiss the indictment. She has received hundreds of pages of legal motions from both sides.

Allen would not be released from jail if his indictment were tossed out, but the district attorney's office would have to file a new criminal complaint and begin the legal process again. Such motions are common in criminal cases and rarely are granted.

Allen is accused of killing officer Earl Scott during a traffic stop about 4:40 a.m. Feb. 17, 2006, on northbound Highway 99, just south of Hammett Road.

He and his wife, Bertera, showed up at the Stockton Police Department less than five hours after Scott was killed. Authorities had been looking for their Nissan Maxima because Scott was clasping its registration papers in his left hand when he was found. The Allens said the car had been stolen.

Allen, 32, has been held without bail at Stanislaus County Jail. His trial is scheduled to begin Oct. 14.

Defense attorneys have filed legal papers to support their motion to dismiss Allen's indictment, arguing about everything from the process used to select the grand jury to the prosecution's alleged failure to tell the grand jury about evidence that suggests Allen could be innocent.

The latest defense motions, which have not prompted a formal response from the district attorney's office, revolve around gunshot residue.

In legal papers, attorneys Ramon Magaña of Modesto and John R. Grele offered a host of reasons why they say the gunshot residue in their client's case is overblown. According to the defense:

Studies suggest that high levels of gunshot residue are found in police stations and patrol cars, so residue could have been transferred to Allen while he was detained at the Stockton Police Department and taken to jail in Modesto.

People who work on cars have been known to test positive for gunshot residue, and Allen worked on his van and another car in the days before his arrest.

Clothing can retain gunshot residue after washing. Allen was dressed in his "regular wear" when arrested and admitted firing a gun two days before Scott's shooting.

Gunshot residue was found on the passenger-side door frame of the Maxima, but most of the six samples taken from Allen's car tested negative for gunshot residue.

A prosecution expert said a single particle with all three metals could be interpreted as a sign that a gun had been fired, but the FBI requires at least three such particles in a single sample to make that declaration.

Magaña said the panel that indicted Allen received a one-sided presentation because only the prosecution may present evidence during a grand jury hearing. He promised further attacks on the government's case as the trial approaches.

"They're going to be challenged on every point," Magaña said.

Bee staff writer Susan Herendeen can be reached at sherendeen@modbee.com or 578-2338.