Phil Sano Taser Trial: Live updates from day one

Posted by on February 9th, 2009 at 12:12 pm

BikePortland managing editor Elly Blue is in the courtroom today for day one of the Phil Sano Trial.

Sano and his lawyer John Gutbezahl are at the Multnomah County Courthouse to fight charges of criminal resisting arrest brought against Sano by the Multnomah County District Attorney’s office. The judge assigned to the case is Youlee Yim You.

(For more on this story, see our original report from June 11th, 2008 and see all our coverage by browsing our “Phil Sano Tasering Incident” tag.)

We’ll update this story as things progress in court. Here are Elly’s reports (sent to us via email as they happened and then edited for clarity):

11:04 A.M.:
It has started. The State has introduced new photos of a re-creation of the scene taken the after the incident. The photos include police posing with glowing badges. Phil’s lawyer is objecting to all three photos, pointing out that officer’s badges are reflective, so the images aren’t accurate unless light conditions (which show badge) were identical.

[One of the key positions of the defense is that the officer’s did not adequately identify themselves prior to tackling and tasering Sano.]

Story continues below

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The State (DA Ryan Lufkin is working this case) says the pictures accurately depict lighting conditions and badge reflectivity.

Gutbezahl counters that the camera isn’t the same as human eye and that the jury will be hoodwinked. Phil did not in fact recognize the officer, he maintains.

Photo from the scene on June 10th, 2008.
(Photo: Ian Stude)

Judge allows photos as evidence but agrees there is some prejudicial aspect that must be addressed.
11:13 A.M.:
The defense has put forward a motion to suppress one of the state’s witnesses.

[This issue centers around the DA serving me (Jonathan Maus) with a court order demanding the identity of a commenter that witnessed the Sano incident. Read more about this in the Portland Mercury.]

Gutbezahl: The state believes its interest is stronger than the need for free media. Media is fourth estate; it must be free and independent. This is a resisting arrest case, not terrorism, it doesn’t warrant government restricting the media. Maus should not have been unilaterally served with a court order, contempt of court is a serious allegation, state has said that process was consensual but clearly was not. Mr. Sano has right to object to admission of this witness as evidence. The state broke the media shield law.

DA: The comment in question was posted publicly on a website, only “chilling effect” on media would be against leaving comments open, so what? Oregon is looking for an exclusion from federal, not state law, (federal law is much more strict). DA Lufkin has listed six reasons for disallowing defendant from seeking exclusion remedy.

[Read the DA’s official response to Gutbezahl’s motion to suppress – Download PDF, 88Kb]

Gutbezahl: This is a 14th amendment challenge, not an Oregon constitutional challenge.

Judge deliberates for a while and…No. She is convinced by state. Does not disenfranchise defendant’s privacy interest, motion to suppress has been denied.

11:20 A.M.:
Current deliberation: The DA wants to play the traffic court tape from same incident [Sano was found guilty of traffic citations back in September]. Defense doesn’t want this because Phil’s sarcasm on that occasion might be prejudicial to the jury. It’s a fifty minute transcript. Lawyers are agreeing on parts to remove, including sarcasm.

There are several witnesses here, including a few supporters of Sano that I recognize.

11:24 A.M.:
Jury selection is about to begin. More updates coming soon…refresh this page for latest.

2:01 P.M.:
Just got back to the courthouse. The judge called me up to the bench and whispered that while they support the idea of this live blogging thing, and don’t want to impede it in any way, no really, not in any way at all, they love the free media, but she must make me aware of the rule that no images or information about jurors is allowed to be broadcast outside the courtroom.

Also, they keep the witnesses out of the room so they don’t hear anything that might change their testimony, but she’s decided the best thing to do is just instruct the witnesses not to read our live coverage.

Jury selection is just getting underway — I’m going to take off and spare you and myself the details of that. It doesn’t look like much is going to happen before 3:30 when the trial stops for the day, so I’ll be back tomorrow.

3:53 P.M.:
Got here at end of DA Lufkin’s opening argument. DA says he has witnesses that saw Sano resisting arrest after he was Tasered and that officers say he was flailing around. He also quotes Phil Sano saying “it wasn’t that dark” in his traffic trial [Sano has already been found guilty of two traffic citations from the incident.]

Gutbezahl (Sano’s lawyer) is up… He says it was dusk, hardest time to see. He shows a picture of the officer, says he ran up to Sano yelling “stop! stop!” and then tackled Sano and never identified himself, never said “your under arrest.” Yes, says Gutbezahl, Sano should have had a light, and should have had his hands on the handlebars but “the issue here is that he is vulnerable” while being confronted on his bike.

If Sano used any type of force it was in response to excessive force.

State calls Cameron Lovre:
Lovre was on way home from dinner party. Down sandy, south on SE 7th when he saw police car parked in street, lights on, heard sound, saw an animated interaction, identified two officers in uniform, saw their badges but not sure if it’s because of their reflective quality. Lovre also says he saw Sano waving arms not aggressively but expressing himself, “he seemed very upset.”

Officer’s body language: one trying to get him to calm down, one with arms crossed.

Lovre was at intersection, stopped, watching, for about ten seconds.

Now they have him drawing a diagram…

4:00 P.M.:
Cameron Lovre testimony continues…

In 10 to 15 seconds, he says he didn’t see Sano calm down. He demonstrates Sano’s actions by waving his arms. He drove away, heard screaming, turned around and saw Sano on the ground. The light turned green and he drove on.

Defense questions witness: Never heard Sano threaten officers. Asks about arm waving, would he feel threatened? Not sure, says Lovre. He was standing in one place, not advancing on officers. Lovre says it looked like a child’s tantrum.

Redirect: Lovre didn’t actually see Taser, but saw its red light at Phil’s torso. Remembers hearing officers warn Sano to calm down or he’d be Tased.

4:15 P.M.:
Next witness called is John Henry Dale. Dale shows up with bike helmet in hand.

DA questions him first:
Dale was walking down the street on SE Morrison and 7th. Heard noise first, then saw it and walked towards the altercation. Heard screaming and buzzing of Taser. Inferred from cop cars that was police detaining someone.

[Note, the following, like everything in this transcript, is a paraphrase.]
DA: Was the man you saw resisting arrest?
Defense: Objection. That’s a legal definition.
Judge: Sustained
DA: What did you see?
Dale: Someone being detained and not complying.
Defense:
Confirms Dale saw nothing at all prior to Tasing. Dale says he heard Sano say, “Stop! I’m in pain!”, but thinks that was after the Tasing had stopped, not sure. He thought Sano appeared to be in pain, officers were holding him down and he was struggling against this but not kicking or punching (he wouldn’t have been able to since they were holding him down strongly). He didn’t hear any threats.
Redirect: Was he struggling? Yes. Was he struggling against an attempt to be detained? Dale doesn’t think so. He thinks Sano’s struggle was against the pain, not against the detainment itself.
Defense: That’s speculative.
DA: Brings out email from Dale. The email says he believes Sano was resisting arrest but doesn’t think the Tasing was justified.

Defense objects to “resisting” terminology. Judge strikes the bit about the email from record.

DA establishes that Dale thinks Phil Sano was struggling against being arrested.

And court is out for the day…

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Paul Tay
Guest

Krikes! A jury trial, and not a bench?! WTF?!

bahueh
Guest
bahueh

oh, this is sad…the bike version of OJ simpson…or Anna Nichole Smith…
seriously? slow news day…..

shawn.
Guest
shawn.

Well, bahueh, you obviously are reading…

In any case, good luck Phil.

matchu
Guest
matchu

Here is to hoping for the best outcome possible for Sano. When the state permits the use of force it needs to be adminstered carefully and reasonably. Hopefully this case finds greater supervision and discipline over the dispropriate usage of force by specific officers.

Cheers.

a.O
Guest
a.O

I agree, bahueh. I’d much rather read about you getting tasered by the cops than Phil.

But seriously, the picture over at the Merc makes Phil look like a bona fide man of the Lord. A good idea for your days of judgment before your peers.

bahueh
Guest
bahueh

oh a.o…your humor is infectious!!!
good stuff…really…

my comment is more on the play by play, Fox News style, he said, she said…

my tasing would never happen…see, I listen to police officers and give them no reason to pull me over/ticket me/harass me in any way, shape, or form.

a.O
Guest
a.O

You got me, Bahueh — that’s even funnier! Because no one has ever been wrongly targeted by the police and beat up even though they gave the cops no reason whatsoever to harass them. LOL!

It’d be especially funny if you wet your spandex in the process. Anyway, yeah, good times.

Carl
Guest
Carl

Elly, you can still do pastels, watercolors, and mixed-media collage, correct? I believe Phil has encouraged such documentation at his past trials. Perhaps you should bring an etch-a-sketch and some clay tomorrow.

bahueh
Guest
bahueh

you’re a roll today, A.O….really, these trials must get you all worked up..

ever notice how some folks have a lot of interaction with the police…and others can go a whole lifetime without?

ever wonder why that is?

Anonymous
Guest
Anonymous

Looking like everyone else, and never doing anything that calls attention to yourself keeps you out of trouble. It’s what allows serial killers to have multiple victims.

Dennis
Guest
Dennis

fantastic work Jonathan.

You’re our bike reporter, and I’m glad that you’ve gotten a new beat!

Jonathan Maus, bicycle-courtroom reporter!

Adams Carroll (News Intern)
Guest

“Jonathan Maus, bicycle-courtroom reporter!”

just to clarify, Elly Blue is the one in the courtroom, I’m just posting her emails that she’s sending from her phone.

Randonee
Guest
Randonee

The banter in these comments is more fun to read the the trial…

Of course had the person just followed the rules and used a working front light that night all this would have never happened. Now thats funny! LOL

Krampus
Guest
Krampus

I have no idea what to believe regarding this entire debacle. On one hand the cyclists should have had lights on his bike, not just for his own safety but the safety of pedestrians and drivers.. then I hear there are three cops there so I don’t see how a taser came into the picture. Surely 3 cops could handle one cyclist. Then I hear this Phil Sano guy has a particular demeanor about himself which made me think possibly the cops had reason to use a taser.

Again, I’m not taking sides til the full story comes out.. but the bottom line for me is to always obey the law, including riding with my lights on at night to avoid law enforcement confrontations to begin with.

bahueh
Guest
bahueh

Randonee…agreed…but don’t forget the previous drunk riding convictions…and whatever else this guy has worn handcuffs for…

anonymous…your logic is extremely faulty…and I suppose you know it. it’s also what allows a majority of people to not have to face a jury of their peers in court…

a.O
Guest
a.O
shawn.
Guest
shawn.

Bahueh, we get it. You’re perfect and will never get arrested. And Phil is a bad, BAD man. But I don’t recall that he’s ever gotten “drunk driving convictions”. Yeah, Phil’s worn handcuffs before, but let’s get the facts straight. Please enlighten me with the evidence of drunken driving.

Kasandra
Guest
Kasandra

I just walked by the courthouse and was startled by the collection of snazzy bikes out front. This explains why.

Krampus
Guest
Krampus

Better hope you get some bike messengers on that jury! 😛

Todd B
Guest

Wow this blogging taken to the next level..it is very exciting and informative.

I going to send a little paypal love to you all.

Thanks Jonathan and Elly.

Elly Blue (Columnist)
Member

Thanks Todd! This has definitely been a lot of fun. I’ll be back at it tomorrow at 9am, though it’ll be longer between updates since I’ll have to edit and post from a coffeeshop near the courthouse during breaks.

Rich
Guest
Rich

I’d be interested to know what was asked of potential jurors. Did they exclude anyone who self identified as a ‘cyclist’?

SkidMark
Guest
SkidMark

Why would being a cyclist exclude anyone?

Bjorn
Guest
Bjorn

Seriously bahueh considering that what you have said is absolutely false, and that Phil is in the middle of a trial wherein he could suffer actual damages as a result of your false statements, which have now been published you might want to check yourself before you wreck yourself.

Just one non-lawyer’s opinion, but you seem to have met all the requirements needed to be on the receiving end of a libel suit, the only difficult part being to show actual damages that result form your remarks… So I guess maybe you aren’t so squeaky clean yourself.

Bjorn

wsbob
Guest
wsbob

“Gutbezahl counters that the camera isn’t the same as human eye and that the jury will be hoodwinked. Phil did not in fact recognize the officer, he maintains.” elly blue/bikeportland

A recreation of the scene? “..glowing badges…”? In their recreation of the scene, I wonder if they allowed the camera to use its flash. That could definitely make a badge glow in a way that ambient light from streetlights likely wouldn’t have. Still, if the officers badges were conspicuously displayed on their uniforms, it seems like the badges would have been at least, discernible to some degree with street lighting.

That aside, Sano’s defense says Sano didn’t recognize the officer, or rather that it was an officer approaching him. Okay. Did Sano at any time attempt to ask of the individuals approaching him, who they were?

Stig
Guest
Stig

‘Remembers hearing officers warn Sano to calm down or he’d be Tased.’

The above quote supports that Sano was tased for non-compliance rather than the police feeling threatened. I remember from a prev article that allegedly Sano actually had a bike light in his bag but the mount had been stolen. To think the thief caused all this!

Both parties were in the wrong and now they’re pointing fingers at each other before a judge and jury. This whole affair would seem so immature and childish if someone hadn’t been hurt. PPB should feel lucky Sano’s heart didn’t give out with all that voltage over a bike light.

So I guess the lesson is: When dealing with the police, suppress all your (often justified) frustration and kill them with kindness. Otherwise you’ll find yourself tased or facing multiple citations.

Rich
Guest
Rich

SkidMark-

Both prosecution and defense are allowed a certain number of ‘exemptions’. They can have that number of jurors excused for just about any reason they want. In fact, they don’t give a reason, they just excuse them. Now, if they tried to exclude all car drivers, they’d run out of exceptions pretty quickly. But a random pool of jurors, even in Portland, the prosecution could easily exclude anyone who rode a bicycle on a regular basis, assuming (correctly or not) that that person would be biased for the defense.

I was once in a jury pool for a domestic violence homocide. I was excused by the defense, I presume becuase I answered “Yes” to “do you know anyone who has been the victim of domestic violence?”.

Rich
Guest
Rich

Bahueh- you might want to consider a little advice from a law professor and a long time police interregator/lawyer in training.

Why You Should Never Talk to the Police:
http://www.schneier.com/blog/archives/2008/07/why_you_should.html

a.O
Guest
a.O

“Did Sano at any time attempt to ask of the individuals approaching him, who they were?”

“Yes, excuse me large men dressed entirely in black and currently yelling and attacking me, I’d like to politely inquire as to whether you might be so kind as to provide me with your names? Last names, please. And organizational affiliation, if any.”

Boy, that’s rich. Right up there with Bahueh’s “bad things never happen to good people.”

bahueh
Guest
bahueh

Rich..why should I personally do that exactly? I don’t find myself in a position to speak to them that much, as it is…
maybe every 10 years with a traffic stop? I had one come to my house after some property was vandalized a few years back…i once asked a bike cop if he wanted to “race”…but it just made him smile.

and A.O….as a lawyer, you’re not very good with actually comprehending what people write….but I’m sure your mom is still proud.

Joe Rowe
Guest
Joe Rowe

It is clear the state is attacking on the angles that play to emotion, and avoiding the rule of law.

Did the photos taken use a flash or any other lighting? There are ways to show how crazy those simulated photos would be. The defense could go out and shoot their own simulated photos. But the defense is not crazy to waste their time. I hope the actual badges worn that day are shown as evidence, and then the jury can all be put on a bike and see how many fine details they can notice while trying to stay warm and avoid all the other road dangers.

Cops doing an illegal tackle and taze is no reason to waste the the taxpayers money on this trial.

Finally, I hope the jury is instructed not to read any of this or other media.

bahueh
Guest
bahueh

Bjorn….

http://blog.oregonlive.com/breakingnews/2008/06/police_say_they_used_taser_on.html

the dude admitted he had been drinking….so I’m actually only wrong in stating a “conviction”…my apologies…I wrote prematurely. such things are on record however, so I doubt libel is really an issue here. he could equally have been in court today for such a charge.

libel? I could equally bring suit to A.O. since what he often writes in response fits the same legal definition of libel…as with many other members here….but I won’t.

its funny…I don’t line up behind the rest of you on occasion when it comes to certain issues and the libel does tend to increase a bit in response…

a.O
Guest
a.O

Wow, Bahueh, not only are you wrong, but you have no idea what you are talking about, as usual.

weastsider
Guest
weastsider

Wow, bahueh (or whatever your name is) you actually admit you are wrong??? Let us mark this day on the calendar!

(Not that there is anything significant about you being wrong – that is, of course, very typical.)

JC
Guest
JC

A.O.
I think you all digress, into the world of personal insults. Not benefitting for a lawyer, really. But that’s just my opinion.
Bahueh may not be correct in his understanding of “libel” per se, but the definition has been tweaked to fit many circumstances in the past. He does have a point that I think is being missed here, why do some people end up in countless encounters with police officers while other’s go their whole lives without a single incident? I’ve read about this Sano guy multiple time in the past and don’t remember the majority of them being very positive.

I wish this Sano guy the best, as I believe Bahueh does too (being a cyclist, he should) and I hope the outcome is positive for both parties involved. I hope Sano is found innocent of the charges he’s brought to court by, and I hope PPD learns a widespread lesson in police conduct and behavior.

The whole thing seems rather childish.

Randonee
Guest
Randonee

#16

Which guy you talking about a.O.? The bicyclist or the cop. In that situation i believe the cop ended up losing his badge. So these two situations, one in New York and this in Portland Oregon are the same situations?

a.O
Guest
a.O

Wrong, JC. Bahueh said he would “never” have a problem with the police because he never gives them any reason to use force on him. (#6) That’s flawed logic, akin to saying that there is no such thing as police misconduct. I addressed this irrationality by providing visual evidence to the contrary showing police misconduct against a cyclist who gave the police officer who assaulted him absolutely no reason to do so. (#16)

Just assume I’m a toll booth operator if it helps you think through the issues.

And Bahueh, I’ll be looking forward to you bringing suit “to” me. I’ll drop you as fast in court as I do on the road.

dave
Guest
dave

What a waste of $$$ and time.

Todd B
Guest
Todd B

Ok guys enough!

You all are running this topic into the ground and others avoid posting … Again you have made your points.

jim
Guest
jim

On Christmas morning, a cop on horseback was sitting at a traffic light. Next to him was a kid on his shiny new bike. The cop said to the kid, “Nice bike you’ve got there. Did Santa bring that to you?” The kid said, “Yeah.”
Well, next year tell Santa to put a taillight on that bike.” The cop then proceeded to issue the kid a $20 bicycle safety violation ticket. The kid took th
The cop said, “e ticket, but before he rode off he said, “By the way, that’s a nice horse you got there. Did Santa bring that to you?” Humoring the kid, the cop said, “Yeah, he sure did.” The kid said, “Well, next year tell Santa to put the d*ck underneath the horse, instead of on top.”

bahueh
Guest
bahueh

a.o…come on, as a lawyer I expect more from you…you should at least know the first thing about the law….

http://www.oregonlive.com/news/index.ssf/2008/12/anonymous_blog_commenters_shie.html

and for such, so you should know I was yankin’ yer chain…you seem to take this site very seriously, for whatever reason. I quite enjoy it.

also, when have you ‘dropped me on the road’ exactly? Let me know what your ITT time is at Jack Frost TT in two weeks and we’ll compare notes on your preseason “fitness” slick. 🙂

As for Sano, as I’ve said before, I hope get off…and stays out of trouble.

(again, my apologies for the false accusation, my memory served wrong)

a.O
Guest
a.O

Yes dude, I know you were just yankin the ol chain. That’s why I’m doing the same on dropping you. Don’t make me start training again, or you might be sorry. 😉

wsbob
Guest
wsbob

“Redirect: Lovre didn’t actually see Taser, but saw its red light at Phil’s torso. Remembers hearing officers warn Sano to calm down or he’d be Tased.” elly blue/bike portland

(stig, comment 26, thanks for bringing this up)

Information available here that would allow accurately following the timeline may not be adequate. Still, if the cops rushed up to Sano, ordering him to stop with the ‘stop! stop!’ command, possibly not allowing him enough time to ask ‘who are you ?’ before they pulled him off the bike, what about after this part of this incident?

Lovre’s remarks seem to suggest that Sano was standing at some point, waving his arms, rather than being astride the bike. Did Sano ever ask the guys that approached him who they were? Seems like he would have wanted to know. At what point did Sano know without a doubt that the guys that had approached him were police, and how?

If the timeline is right, that the cop or cops pulled him off the bike, then allowed Sano to stand there talking to them, waving his arms at them, before the cops tased him, that’s interesting. Why didn’t they simply handcuff him upon pulling him off the bike?

According to this article, the charge against Sano is “…criminal resisting arrest…”. Did the officers tell Sano at some point that he was being arrested? If they did, the time at which they told him that would seems very important. Did they tell him before tasing, or after? Was Sano ever given an opportunity to peacefully submit to arrest?

Bjorn
Guest
Bjorn

#32 the article you quote proves my point. It is not illegal to have a beer and ride your bike in oregon. The cops were obviously trying to throw the book at phil after tasering him but they saw that he was sober and did not even bother with going through the motions of a sobriety test because it was clear he would pass. Your earlier post was libelous.

Bjorn

Dan Kaufman
Guest

To those who are so quick to condemn.

Rev Phil is a SUPER POSITIVE person who has done more for our community than most.

Yes, he is assertive and occasionally a tad reckless. I’ll take that over a pontificator who loves nothing better than to tear things down or some milquetoast advocate too timid to actually ever stand up for himself.

Good luck, Phil.

joe
Guest
joe

it is amazing to me that you can resist arrest for something that you were not going to be arrested for.

I am stoked that elly is willing to cover this and, somehow, able to stay awake during the whole process. No way that they will convict phil on this one. then, it is onto yet another tax payer funded settlement for excessive use of force.

maybe we can sell tickets to the a.O baheuh race to raise funds?

bahueh
Guest
bahueh

joe, I wouldn’t put your $$ on A.O. 🙂
did you used to race? clydesdale? 🙂
your name doesn’t come up in the OBRA archives…

and bjorn…I do thank you for bringing my words to my attention, it is the reason I issued an apology/retraction. I had a false memory of the original account from a few months back.

however it is not libelous in the state of Oregon…see #41…here you can just about say whatever you want on a web blog without any legal recourse. Maus has been a leader in that using this site, and we should thank him, for better or worse. I will, in part thanks to you, watch what I post from now on in those terms however. such a tangent was not part of my original reason for posting..

SkidMark
Guest
SkidMark

I don’t see how being a cyclist would make you automatically on Phil’s side. Obviously, looking right there it isn’t true.

If these pictures the Police took of their uniforms were under dusk conditions, wouldn’t they have to use a flash? That would explain the glow on the badges. How is the Reverend supposed to “see” like that, use a Phil-in-flash? Too bad someone stole his headlight, that would have made the badges reflective. Where were the Police when his headlight got stolen?

Bjorn
Guest
Bjorn

#45 I have to agree with you dan. I have known Phil for 12 years now. When we were both attending linfield college I saw Phil use his radio show to investigate and stand up against the racially motivated assault of a fellow student. His radio show directly resulted in someone who implicated himself in the attack turning himself into the police.

Over the years there have been times when I was hanging out with phil when he did things that made me a little uncomfortable, but I have never seen him do anything illegal, and more importantly I have never ever seen him in any way do anything violent. Knowing Phil I do not in anyway believe that some police officers politely identified themselves and asked him to stop his bike and he responded violently. It simply does not agree with his very non-violent character.

Bjorn

D.R. Miller
Guest
D.R. Miller

Listen, I’ll have to defend Phil too. I’ve known him for almost 7 years now, and I’ve never seen the first indication of violence or negativity in the guy. “Wild n’ crazy”? Okay, sometimes extraordinarily energetic and demonstrative, but also thoughtful and entirely peaceable. Kaufman (#45) is right on. Phil is SUPER POSITIVE. I can’t say how many rides I’ve been on where (to cite just one example) he took it upon himself to facilitate the flow of the ride through busy intersections in a way that was entirely positive in expression to onlooking motorists.