Posted by Elly Blue (Columnist) on February 10th, 2009 at 12:38 pm
John Gutbezahl faced Judge
Youlee Yim You for day two of the trial.
(Photo © Elly Blue)
It’s day two of the Phil Sano Taser Trial and I’ve been in the courtroom since about 8:30am. Yesterday, I took notes using the email program on my phone and Jonathan was able to edit and post them as they came through.
Today, Jonathan is in the air somewhere between here and Guadalajara (read why he’s there all week). We have a long lunch break, which I’ll be using to post and edit my notes from the free wi-fi in the lobby of the City Hall atrium — not quite live blogging, but close. I’ll post the afternoon’s notes as soon as court gets out for the evening.
The proceedings are open to the public. The trial is in room 548 of the Multnomah County Courthouse at SW 4th and Main, with Judge Youlee Yim You presiding.
Snowy ride to court.
Judge goes on record at 8:50. The defense has three witnesses, and the DA plans to contest one, a Mr. Donner. He was not present at scene but on phone with another witness, Diana Spartis. DA unsure of relevance of that testimony.
Defense: Donner could hear Mr. Sano in pain over phone. So would only testify to heard evidence not hearsay.
Judge to Defense: What will he testify about?
Defense: That Sano was in pain, screaming, asking to stop.
[Officer] Smith said “Hey buddy, stop for a second, I need to talk to you,” as he crossed the street towards Sano.
Judge will allow the witness at this point as excited evidence and state of mind. DA can object if needed during witness testimony.
(The judge asks about photos. I ask if I can just take some right now and of the audience during recess, she says fine so I snap away in the awful courtroom light).
Judge and lawyers are grappling about jury instruction. Should they say resisting arrest, or attempting to not be taken into custody? DA says resisting is about conduct, i.e., resisting, towards a particular intention, i.e., not to be taken into custody.
Defense: definition of resist implies intent. Can’t have been intentional towards that result if Sano didn’t know it was a police officer.
Judge will think about it.
Calling in the jury now.
Today is going to be like molasses…court doesn’t rush for anything.
DA calls its first witness of the day, Sergeant Smith of the Portland Police Traffic Division.
On June 10, 9:20pm Smith and Hoesly were working under Dewey warrant service grant, in an unmarked Crown Vic, looking for people who didn’t turn up for their drunk driving court dates and the like.
It was dusk, around solstice, lights required for cars and bikes at that time.
Were just finishing shift, ready to head back to office, saw bicyclist zipping down street, dark clothes, no light, not using bike lane (she was in the lane reserved for vehicles, he says), they had to brake suddenly. This was Diana Spartis. They stopped her. Hoesly went back to car to get ticket machine. Smith looks south, sees two more bikers with no lights. He points them out to Spartis. One guy turned left, another, who turned out to be Sano, continued straight. Smith decided to stop him and talk to him, maybe issue ticket.
Smith said “Hey buddy, stop for a second, I need to talk to you,” as he crossed the street towards Sano. At this point he was about 30 feet away.
Sano was riding upright with no hands. He looked at Smith, kept pedaling.
Sano didn’t stop, so Smith said “stop stop! stop!”, raising voice each time. Sano ignored him, but wasn’t alarmed or accelerating, and didn’t reach for his handlebars. “He was ignoring my existence and not heeding my commands.” Now Smith was 10 feet away. Smith runs to stop him, grabs him and bicycle. Sano rears up like he was trying to get away.
DA asks about re-creation photos that he, Smith, and Hoesly went out to take afterwards. They waited for dusk and for the streetlights to go on to simulate lighting conditions of the event.
The Crown Vic police lights (inside the car, near rear view mirror) were on already because of the Spartis traffic stop.
Defense asks was there a flash on the camera? DA and Smith not sure for this pic. They took several each way. Defense objects to photo being used as evidence, but is overruled.
DA asks if Smith was wearing same uniform as wearing now, points out reflective badge and patches. Smith says he’s usually on motorcycle, reflective is for safety and general visibility.
Another picture. Smith says Sano was not in bike lane but in “lane of traffic.”
Describes again how he grabbed Sano’s left arm with right hand and the bicycle’s front handlebar.
DA: “Was he committing an offense for which he’d be subject to arrest?”
Smith: “Yes, failure to obey a police officer.”
Sano then “rared back,” “squared off,” took an aggressive posture, flailed. Smith thought he was getting ready to throw punches. Smith then pulled him off his bicycle, commanded him to stop resisting. Pushed him up against wall of building at 7th and Alder. This was not effective. He kept trying to get away. Hoesly saw all this and also tried to grab Sano, cuff him. Gave him repeated commands to stop resisting. The two of him could not control him, he was like a cornered animal basically, kept tensing up and pulling away. Had to physically overcome him by wrestling. Hoesly asked want to use the Taser? Smith said yeah, stand back, and used the Taser on Sano’s back.
tasers entered Sano’s body.
(Photo courtesy Phil Sano)
DA prompts these responses: Risks of injury to tackling someone to ground are large for officer and Sano. Also risk of someone grabbing his gun or baton.
Smith drew his Taser, told Hoesly to step back, and shot probes into Sano’s back but his thick jacket prevented good contact. A person being tased directly would have a huge muscle contraction, go to ground, but Sano stays upright, yelled that it hurts, was still able to talk, and spun around and ripped out the taser cords.
Smith changed his Taser cartridge. Sano still ignored commands to stop resisting. Both officers fired their Tasers at once (“we triangulated him”), Smith into Sano’s chest and Hoesly into his back. He went to the ground but was still able to talk coherently and struggle, which impressed Smith as very unusual. “It was quite alarming.”
They then tried to get him onto his belly with his arms behind his back so they could handcuff him. This proved to be futile so they cuffed him in front, which Smith said he can’t recall ever having had to do before. They called for code three cover which is “get here now”
The jury looks wide awake by this point.
Sano’s facial muscles were clenched, he was enraged, yelling profanities, he never really calmed down until well after cuffed behind back, probes removed by medical people, put in cage at back of police car. He still refused to give name, or say whether he had identification on him.
Later Smith asked Sano why didnt he stop? Sano replied that he didn’t know Smith was cop but said he did see him coming from near the vicinity of the police car.
Defense’s turn to question Sergeant Smith.
Discussing lighting, Smith says he doesn’t find it too hard to see at dusk. Defence tries to get him to admit light can be strange at dusk, streetlights and natural light are strange mix. Smith disagrees.
On to reflectivity of badges. Depends on angles of light and viewer. And shape of badge. Smith says shapes are different but badges are always worn in same place by all law enforcement.
Back and forth about badge shape to little effect.
No, Smith did not identify himself as a police officer — he thought was clear because he was walking from a police car with lights.
First was seen by Sano when was ten feet or so from police car.
Defense: You never said “Stop, police?”
Smith: That’s a little passé.
Judge has to mediate minor argument resulting from this line of questioning.
Sano didn’t accelerate or change direction or avoid Smith in any way. “He completely ignored me.” Smith grabbed him only once Sano had proceeded past him.
Sano going about 5mph.
Was he zipping up his jacket? Smith doesn’t know.
What’s the risk when you grab someone who’s rising a bicycle? Smith doesn’t see any risk, because he didn’t tackle him, just stopped his momentum.
Never said the word police.
Did Sano try to throw a punch? Smith never gave him the chance. When Sano raised his arms after the stop Smith “knew he was going to do something that was not cooperative” but not necessarily a punch.
Never uttered words “you’re under arrest.” Did say “stop resisting, stop resisting put your arms behind your back.”
Says Sano was in a fighting posture.
Defense: You and Officer Hoesly couldn’t control his arms. When they were free, such as before you tased him, did he try to punch or attack you?
How long were his arms unrestrained? Smith thinks a minute.
No attacks from Sano during that minute.
Smith has been tasered before, in training. “Your muscles tense up?” Defense asks, “Yes, like an all over your body charley horse.” Muscles tense up more the wider the separation between the probes.
Sano’s effort to not put his arms behind his back to be handcuffed must be a conscious effort, because of muscle control. Sano is balled up with arms clenched in front of him, not attacking but rolling around on the ground.
Defense is establishing that Sano never at any point attacked or attempted to.
And that at no point during the encounter did Smith tell Sano he was a police officer or that he was placing him under arrest.
Smith: No, didn’t use those words.
Redirect: DA asks why, when approaching a cyclist for minor violation like not having lights, would you not say “stop, police?”
Smith: It helps to be friendly, not adversarial, when the occasion warrants it. Part of his job is to educate. He’s a friendly guy.
Describes Sano’s arms as clenched up (his right arm was in a fist, his left was being held by Smith) and thrown back.
DA: How much do you weigh?
Smith: Nervous laugh, 220.
DA: And Hoesly?
Smith: More than me. Laughs. 230? Thanks for the question I appreciate that.
DA: So the two of you couldn’t restrain him?
Smith is asked about the affects of tasing: immediate relief from pain once cycle is turned off. No long term effects despite stigma. Very little blood when you pull out probes unless you pull them out wrong, because they cauterize their own wounds.
10 minute break, badly needed, this is intense.
– Back from break –
Officer Hoesly is the next witness. A couple of Phil supporters just came in, took seats.
Hoesly was driving car that night. Was pulling out of gas station and nearly hit Diana Spartis, so stopped her even though was nearly end of shift. Then heard horn to the south, then heard Smith yelling. Looked up and saw Sano riding, no light, hard to see. Saw Smith yell more, then reach out and grab Sano off his bike. Hoesly continued citing Spartis. Thought Sano’s resistance was just momentary he thought it was no big deal. Hoesly decided to go to the scene once he saw Sano up against the wall.
Saw Sano clenching arms, yelling loudly. Didn’t know why, didn’t expect, hadn’t seen that sort of behavior out of someone in years. Hoesly helped hold him, Sano broke free, they regained control of arms at one point, but couldn’t restrain. Hoesly said, do you want to tase him? Smith tased him while Hoesly was trying to remove own taser, but it was new and had an extra snap he wasn’t used to and couldn’t get it out right away.
Hoesly saw Smith tase Sano, saw Sano spin and broke the cords. Hoesly got his own taser free, aimed for Sano’s buttocks to avoid the thick coat that stopped the full force of the first tase. Smith tased Sano in the chest at the same time. Thought it was odd that Sano could still attempt to fight through the tase, that’s usually something only people drunk or on drugs could do. Hoesly cycled his taser at least three times while they were trying to handcuff Sano. Sano was still resisting it so they cuffed him in front, which Hoesly thinks is only time in his career he’s ever done that.
Stopped taser cycle once Sano’s arms were restrained.
Crowd had gathered, including backup police, a passing ambulance, and someone videotaping them he thinks?
Didn’t smell alcohol so suspected mental illness, disability, or drugs.
Hoesly tried to identify Sano to see if he was flagged in the system as mentally ill, but Sano wouldn’t give him any information. Another officer talked to him, got his details. Hoesly read him his rights, asked why didn’t stop. Sano said didn’t recognize Smith as cop, just as a guy in black running at him. Said he had seen cop car but that didn’t mean anything. Sano said he knew it was a cop by the time he was off bike and up on sidewalk but by that time what had happened had happened.
DA now plays parts of transcript from Sano’s traffic court date:
Transcript: Sano saying he had a bike light on his person which he showed the officer. His mount had been stolen. Recalls zipping up his jacket, sitting upright. Saw police car pulled over but assumed was engaged and not causing problems for anyone. Suddenly he was being attacked by pedestrians, which has happened to him before. Heard a guy say “hey buddy” and looked over, just saw a guy in black coming towards him. Suddenly tackled, pushed against wall, tasered. He complied by dropping to his knees, and was tasered again repeatedly.
A group of schoolchildren has just entered the courtroom, they appear to be about 13… They’re sitting and watching eagerly.
Recording continues.,, After this incident did you give any media interviews with news papers or blogs where you said you thought they were cops?
Phil: I did, would you like to hear more about that? No, that’s sufficient.
Sano saying Smith was about half a block away from police car when he first saw him. Says was confused because Smith was wearing motorcycle officer uniform which is all black and different from regular blue patrol office uniform. Just saw a guy in black, backlit.
The school group has been ushered out by their escorts.
Sano on tape is framing the incident as an attack by pedestrians. Doesn’t think “hey buddy I want to talk to you” is a direct command a police officer would give.
Confused discussion on tape about the light bracket theft. Defense asks to approach bench. Lots of whispering between judge and lawyers. Jury steps out. Judge agrees to skip next part of tape. But will any other parts be objected to? So no more delays? Please look at transcript. Gutbezahl says there is no transcript only Mr Lufkin’s notes. Judge impatient, says please look at those.
Continuing DA’s time with Hoesly, which currently consists of playing tape of Sano’s traffic court hearing about this same event.
Hoesly has a bad cold and asthma, keeps adjusting his bullet proof vest.
On tape, Sano is being asked to explain why he said he didn’t need lights because it was not that dark, but it was so dark that he couldn’t identify the officer?
DA: Officer Hoesly, how much do you weigh? Hoesly has trouble with question, probably about 238, 237. More with my uniform, vest, equipment.
Going back over lighting, photos, type of car and lights.
Hoesly believes flash was used in the glowing badge photo, the flash gave them a darker picture for some reason, which was more accurate to his memory of lighting conditions. (Smith’s badge in the photo recreation of the scene is glowing like a beacon, the brightest thing in the picture.)
DA: When you joined Sergeant Smith at the sidewalk, was your hand to hand combat training effective? Hoesly: Only a little. Doesn’t recall ever using his taser before, didn’t want to taser him especially not as many times as he had to be tased before they could get him in handcuffs
Defense’s turn. Back to photos, light condition. The flash reflects the badge? Hoesly thinks so. Defense asks to the best of your knowledge Mr Sano didn’t have a flash on him? Ha.
Defense asks, so Sergeant Smith was in motion, not stationary in photo? Yes. And he wasn’t smiling the way he was in the picture? Probably not.
And doesn’t a traffic stop usually happen in a marked police vehicle with lights and with the officer actually in the vehicle? No, most traffic division cars are not marked, though motorcycles are marked. Hoesly has stood next to those unmarked cars and pulled people over before and never had anything like this happen.
Do people generally expect to be pulled over by officers in marked police cars? Yes.
Was Smith in a marked or unmarked patrol vehicle or on a police motorcycle when attempting to stop Sano? No.
Hoesly never told Sano he was under arrest.
One of the jurors appears to be having a hard time staying awake.
No, Sano was never able to attack them but that may be because of their own defensive skills.
Probably 15 seconds between suggestion to tase and tasing. There was no way it was a minute in between the two.
But he was tased again, could have been a minute until second tasing.
Did take any urine tests? No we probably should have. It was obvious he had been drinking and that his behavior was affected by this, but it’s our fault for not testing.
Hoesly keeps trying to volunteer more info about this, but judge, defense stop him.
When you were tased in training what was it like? Extremely painful, couldn’t yell, lost all control of muscles and fell to ground. Was tased for five seconds. Immediately gained control of muscles again. Stood up, felt normal.
Officer Hoesly asks Gutbezahl, have you ever been tased?
Judge: Officer, you have to let the attorney ask the questions.
Hoesly: Sorry. I forgot.
Redirect: Can you be arrested for obeying a lawful order by a peace officer?
Hoesly: Yes. No doubt in my mind he knew exactly who we were.
Defense objects to this speculation, which is sustained.
Sano acted as though he was being attacked by a wild beast, it was very strange behavior.
Encounter at wall lasted a minute to a minute and a half.
Done. Counsel approaches to talk about scheduling.
Jury sent out.
State has rested. Defense moves for acquittal because state has not met burden of proof. Can’t prove physical resistance, no evidence that Sano attacked or attempted to. Sano was tensed but not in motion, this was not an act of resistance but rather passive resistance, which is not illegal. He was clearly upset but that’s not illegal either, he did not use force when has the chance to.
State also fails to prove that Sano knew the individuals were police officers or that he knew he was under arrest. You can’t resist arrest if you don’t know you’re being arrested.
DA responds: A jury could find Sano’s actions are intent when his minute and a half struggle was enough to cause the officers to use tasers when they have never done so before. His actions placed self and officers in physical danger. Definition of arrest is being placed in custody and also having committed arrestable offense. Requests motion be denied.
Judge finds evidence most convincing from the state, therefore will continue to allow jury to decide.
Defense’s first witness is Diana Spartis.
Bicycle and Trimet are her primary modes of transportation. She did not know Sano at the time of the incident, but she does now.
She was pulled over on bike right before Sano. Was riding from North Portland to Sellwood, on 7th Ave. She saw a car coming out of parking lot too quickly, so she swerved out into the lane and then back into the bike lane. Half a block later she saw red and blue flashing lights, was pulled over. Didn’t pay attention to how they were dressed because they came out of cop car so she assumed were police. Definitely not pressed blue uniform.
She had light on bike, it wasn’t turned on yet.
During contact, she was mainly talking to Officer Hoesly, but at one point Smith walked into southbound lane of traffic and was telling her it was unsafe to ride without a light, she had on black sweater, he said, and it’s hard to see bikers in general. He pointed out two more bikers and said it’s hard to see them, too. He was maybe 20 feet away from car. Standing in traffic lane. Then Smith began interaction with Sano. She never heard Smith say he was police officer.
Picture. She says that looked like it was towards end of the time period. She majored in photography, and thinks the picture was taken with an on-camera flash — you can tell by the dots in Smith’s eyeballs.
No, she says, Smith’s badge was not glowing at the time of the encounter the way it looks in the photo.
The police should have used a timed exposure to get an accurate depiction of the lighting conditions at the time. She thinks that the photo is not an accurate depiction of circumstances at that time.
Smith said hey buddy… Sano looked like he’d heard someone speak but kept riding, not very fast, probably 8mph, below average bike speed. Was zipping jacket.
Spartis saw Smith take 4 sprinting steps as Sano passed him. Grabbed him off his bike, ran with him up to building, slammed him against the building, and almost immediately tased him. Sano did not make any theatening moves. She did not see him resisting the officer in any way.
Never heard officer identify self as police. Didn’t say you’re under arrest at least until after tasing.
After they let go of him before tasing, Sano was about five feet away. Force of the bounce? Was no punching or shoving.
Within a second or two she heard the tasers clicking. She heard this while Hoesly was running over. Phil sounded like he was in a lot of pain and was saying why are you doing this, this hurts. Was tased, dropped to his knees, and then continued to be tased for several minutes.
Defense: How did you know it was several minutes?
Spartis: She was terrified. She went to her bike bag, got her cell phone, and called her roommate, Mr. Donner.
Now we break for lunch until 1:30.
Back in courtroom. 8 spectators now. Wet snow coming down outside. Spartis back on witness stand. Judge asks jurors to speak up if any concerns about getting home in the snow.
Defense Exhibit 101 is Spartis’ phone statement from period of event. The 3 minute phone call to her roommate began at 9:24pm. In background officers continued to tase. Sano screamed. Tasing began before phone call and was reason for it. She was scared and didn’t know what to do and wanted to let someone know. Tasing went on for a minute or so after call ended.
She was watching the whole time. He wasn’t attacking or jumping forward at all. He was screaming a lot saying that hurt why are you doing this.
Afterwards she asked officers for names and badge numbers, she wanted to report what she had seen. Hoesly came back and printed her ticket, she asked for his name and info. He said was on ticket an then said wait no, printed a new one with both. Then he said you have to give me your phone number, she said no why, he said because I gave you our information. She knew she didn’t have to. And he was being condescending. She wanted their info why? So she could report the assault.
DA now questions her.
Why did you leave the bike lane? Couldn’t you have slowed down to let the vehicle pass? She isn’t sure she could have slowed in time. She moved so they could see her because there was a wall in their line of view.
Did you feel a light was not necessary? Not when she left home. But by that point she remembers thinking she needed to wait for a stop light and then pull over and put it on.
She didn’t feel like she was in imminent danger, felt like she could wait for light.
Is yr relationship with Mr Sano friendly? We’re not enemies. Do you speak on a regular basis? No.
Statements to media. And testimony in traffic trial. Asked to explain her past descriptions of the incident. Did he ever fall to the ground when he was taken off the bike? She’s not sure. Bike was flung forward, he staggered.
DA takes out past witness’s drawing. She thinks it’s not quite accurate, draws on it.
Did he do anything that constituted physical resistance?
She was quoted on BikePortland saying he wasn’t cooperating fully but wasn’t doing anything that could be taken as physical resistance. Means what? He didn’t go limp. She didn’t see his arms flail. Didn’t see him push.
Again about how she identified officers based on car, uniform.
Sano had hands on handlebars when Smith first pointed him out. Took hands off later.
I think DA is trying to establish that the light was good enough to see a lot of details, use the defense witness to prove Sano should have identified the officer.
DA did you actually see him zip up his jacket? No, she realizes now she knows he was doing it because of later testimony in the traffic court case.
Back to the photos…she thinks they’re all close to accurate except for the flash.
She thinks Sano was in the bike lane the entire time.
She posted something on Portland Indymedia saying she was a witness. She was concerned about what she’d seen and wanted to be a witness. He shows her another post and asks if it changed her position. She doesn’t remember seeing it. It isn’t read aloud.
Was she instructed at any time not to speak with officers or DA office? No.
Did she refuse to give officer her phone number? Yes.
Did she ever hear Mr Sano curse? Yes.
What tone of voice? Upset, pain, frustration.
How long were they against wall before Taser used? They hit wall and left it there was no struggle against wall.
There was no time before tasing where both officers were struggling with Sano, she says.
Did you hear Smith order Sano to stop his bicycle? She heard him say hey buddy I want to talk to you and then maybe one time heard him say hey stop.
Redirect: Uniform identification again. And Smith never identified himself as an officer to Sano.
When Smith tackled Sano off bicycle did it look like he had Sano under control? No lots of momentum and pushing, he didn’t have Sano in wrestling hold. Didn’t see Sano square off. It looked like they flew off the bike. Sano wasn’t incapacitated but not under his own control because he was being thrown into the wall.
She didn’t give Hoesly her phone number because she knows her rights, and the police already had enough info to contact her as a witness based on the traffic stop. She felt Hoesly was bullying and condescending to her.
Tim Donner testimony
Tim is Diana Spartis’ roommate now and at time of event. Received phone call from Spartis. Can’t ask what Spartis said because hearsay. What did be hear in background?
He heard screaming like someone was in great physical pain. Can’t remember any of the words. Didn’t sound like fight, was clearly someone getting hurt.
That’s it. Short recess. Sano is next witness.
Next witness is Phil Sano, he’s wearing a suit and knit fingerless gloves with stars.
Lives in southeast Portland, rides his bike as primary mode
Where were you before this incident? At a bar with friends planning free bike ride. Had two beers over two hours, was not intoxicated. Was not on any kind of drugs.
Have you previously been assaulted by a non police off on your bike? Yes in 2002. Person was on foot, said “hey buddy, I’d like to talk to you come over here” was eerily similar. Sano filed police report in response.
Does he think about this as he rides? Tries to be optimistic but needs to be aware.
Did you have light? Yes. On bike? No. Bike light had been stolen while was in bar. Decided he could just go straight home, would probably be safe.
Was tired from full day of working at free geek and video editing for a foundation.
Eyesight has been pretty bad since he was a kid. Has new glasses now. Is about to produce his old ones from time of incident. They are now defendants exhibit 102.
DA objects that this is going on too long.
Overruled. Defense says will tie up in a minute.
Was riding on 7th, thought about light being off bike but assumed police were busy and wouldn’t stop him.
Was fidgeting with jacket zipper, was a little stuck which was frustrating, heard someone say hey buddy can I talk to for a minute, saw person all in black standing in middle of street, wondered if was police but decided was not.
What would he have done if knew was a cop? Pulled over. Has been pulled over before and cooperated for bike violation.
Was cold tired it was no one he knew so didn’t stop. Next thing he knows guy is saying “I said stop” at the same time as he was being grabbed and pulled off the bike.
That’s when my glasses flew off my face. I had a hard time seeing anything at that point, is very disoriented when not wearing them.
Did you feel vulnerable? Very. Large person in black tackled me off my bike and I couldn’t see.
Sano plays bicycle polo so he knows how to fall.
This made him think they weren’t police because had never been assaulted by police before. Thought was being mugged, bike stolen. Wasn’t trying to fight, was just trying to get away from them.
Then is pushed against wall, breaks free, can’t see much. Sees other dark fugue running towards him, hears crackle of taser. Flung back because it was very painful, it hurts a lot. Didn’t paralyze him because didn’t go through all layers of jacket. Yelled in pain, said “what the fuck!” a lot.
This made him think they weren’t police because had never been assaulted by police before. Thought was being mugged, bike stolen. Wasn’t trying to fight, was just trying to get away from them.
He didn’t hear them saying anything until they tased him. His hand caught the wire and he yelled who whoa whoa! And they yelled get down! And back and forth for a while. At this time it began to dawn on him that they are police
He get down on knees and has hands in air and they tase him again. It’s very humiliating when you give yourself up and say please do not hurt me, and they hurt you anyway without cause
Phil very agitated, voice getting louder…
He’s been pulled over his share of times “and I’ve never had them hey buddy me”. Was disconcerting because of resemblance to 2002 incident.
Joseph rose quoted him in the Oregonian saying that he knew these were police once up on sidewalk. This was out of context Sano says he started to realize they were cops because of tasering.
Was most painful experience of life. Felt like he was writhing on ground for tens of minutes, the cycles are waves that constrict you. Incredibly painful. He rolled and grabbed the boot of an officer (was originally cited for assaulting an officer) and at this point the tasering stopped. Felt frozen, clinched, couldn’t move.
Sano continues on witness stand
DA is now questioning him.
Light conditions were dusk. (Going over all details).
Phil talking about proper behavior towards police.
Thinks Smith was forty or fifty feet from Sano when Sano first saw him, was three or four car lengths ahead of car and off in middle of lane.
More drawing on the diagram.
Sano remembers looking to see if guy was a police officer, if was cop he would want to stop.
DA: But you have testified that you know police officers have black uniforms but you didn’t recognize that as a police officer from less than 20 feet away?
Smith grabbed his arm but Sano doesn’t remember him grabbing his bike.
So this was similar to 2002 incident where you were assaulted but you didn’t even accelerate? Yeah.
Angle of being pulled off bike. Had inertia going straight but officer was approaching from angle from behind.
First step landed hard on right foot, was going fast, continued to take steps away out of inertia. Officer is pushing him to the side while Sano’s inertia kept him going straight.
Hit wall, bounced off, saw another person running towards him. Then tased. There was no point at which both officers had restrained him by the arms at once as they testified.
First tase doesn’t make him fall to ground but is very painful.
He keeps asking why they’re doing this. They don’t answer. He doesn’t remember them saying stop resisting in those terms, which might have clues him in that they’re police.
Interviews with media. Told The Oregonian he didn’t stop because hands were on the brakes, but stopped pedaling. Said he scuffled to separate him and stood in a defensive position?
DA: Today you said you bounced off the wall. Do you recall saying this?
Sano: No, I —
DA: Thank you that was my question
Brings out photo with Smith, asks if he’s seen that uniform before. Yes
Redirect is about media. Anything more you want to say? Yeah, scuffling is bad word to use, he meant moving around a lot, not fighting. His defensive position was passive not active, now he knows the terms.
Sano says he doesn’t know any martial arts, put up hands not to fight but to show passivity, defend self if attacked again.
Why didn’t you accelerate when heard hey buddy?
Sano: tries not to be suspicious of everyone he sees.
The DA is allowed a rebuttal — he calls Sergeant Smith again to rebut Sano testimony.
DA: After you fired first taser shot, what happened?
Smith: Sano said “that hurt, stop it.” Was still on his feet, turned, grabbed taser wires, breaking them.
Was he ever on his knees yielding to your will and then you shot him point blank? No. He only went to knees after tased the second time.
How about when you grabbed him on his bike? Did you ever careen out of control after grabbing him with no break and push him into the wall? No. First tried to wrestle his arm behind him, then I did push him into the wall but only after it was clear he was not going to comply.
Did you push him against wall with enough force for him to bounce? No
Was there a struggle? Yes.
Both Smith and Hoesly had grabbed Sano at once, prior to the first taser shot.
How long does taser cycle last? 5 seconds max.
So how many seconds total? First taser deployment was one cycle, wires snapped during first or second cycle. Oh yeah (looks at report), he cycled it a second time. So less than ten seconds the first time. On second deployment, Smith only cycled once, so five seconds. Hoesly cycled three times but at same time as Smith’s shot (he snaps his fingers).
Any way he could have been tased for more than a minute? In this instance no.
Goes back to what he said where he was yelling stop. After that, he made contact.
At the wall — Sano pushed himself off, was using physical resistance to pull his arms away, get away.
Brings up the glasses. Smith not sure when they came off, but noticed that they did at some point.
Defense asks again if Sano ever attempted to punch, kick, headbutt etc. No never.
More going over grisly details of tasing. This must be for the jury’s benefit.
Redirect: Before first and second taser deployment what was Sano doing? Standing there in aggressive fighting stance. Out of control, enraged, foaming at mouth.
State rests. That’s all for today. We begin again at 9am tomorrow with closing arguments and jury instruction. Then the jurors will deliberate.