District Attorney Ed (the barbarian) Berberian was slapped down by another judge in the Dr. Simon self defense shooting case. The shooting occurred in Marin County, an environment notoriously hostile to the Second Amendment. From marinij.com . . .

Judge Andrew Sweet dismissed “in its entirety” a grand jury indictment lodged against Dr. James Simon, saying District Attorney Ed Berberian “made an inappropriate presentation to the grand jury” that failed to tell jurors relevant details about the case, or told them details that had no relevance at all. The result, said Sweet, was “substantial prejudice.”

Had Berberian proceeded appropriately, “it is reasonably probable that the grand jury would not have indicted the defendant,” Sweet said. “There’s a lot of evidence to establish that the defendant acted in self defense,” and little to suggest otherwise, Sweet observed.

This is the second time that a judge has dismissed the charges in the case. In the first preliminary hearing on January 7th, Judge Kelly Simons dismissed the charges, ruling there was insufficient evidence to justify a trial. The man who was shot, retired mortgage broker William Osenton, had difficulty testifying at the preliminary hearing, saying he remembered little.

Osenton, who was not charged, has not explained why he followed the Simons into their driveway. At the preliminary hearing, he testified that he remembered “almost nothing of that day.”

During the Grand Jury testimony, where there was no cross examination or rebuttal, Osenton’s memory cleared up.  He told the Grand jury he had put “his hands up in the air”, and asked the Doctor not to shoot him.

DA Berberian has a history of aggressive opposition to Second Amendment rights. Even though the Doctor’s 50 firearms were legally owned under the highly restrictive California laws, Berberian insisted that having so many was inappropriate for the community, and was an important factor in prosecuting the case.  Most of the guns were WWII collectibles and hunting arms.

I do not think that Berberian will get another chance to prosecute Dr. Simon. He has had two, and I do not see any other options.

A DA can keep convening grand juries until he obtains an indictment, such as happened to Tom Delay, the former Republican House Leader.  In that case, a Democrat DA in Austin convened three Grand Juries to get an indictment against the effective Republican leader.

Delay was eventually vindicated, after being forced out of Congress.  Delay was not able to avail himself of all legal defenses while in Congress, because of House rules.

DA Berberian has already used the Grand Jury and got an indictment, so I believe that he is not allowed to convene another grand jury in this case. Dr. Simon is not a Republican member of Congress, even though he owns guns. A true believer like Berberian will never admit that he was wrong.

The district attorney contended he had proceeded appropriately and honorably. “I disagree with the court’s analysis of the record,” he said, adding the jury was aware Osenton had trouble recalling events. He asserted that the weapons collection was a relevant detail, as was Simon’s “victimization” state of mind.

Actual lawyers may disagree. If there are other ways for DA Berberian to prosecute Dr. Simon, please let us know about them. On a procedural note, I wonder how long it will take Dr. Simon to have his collection returned.  It may be worth many tens of thousands of dollars. He is 71 years old.

In another case in California, where no crime was committed, the police refused to return 17 guns for three years, even though there were two court orders requiring them to do so.   The police had most of the guns destroyed.  A lawsuit resulted in a settlement of $30,000 for the destroyed firearms.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.

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48 COMMENTS

  1. If only the rest of us weren’t so dim we would see how right he is. He alone knows what is best for all of us. After all he is in THE GOVERNMENT.

    This assclown should be booted out of office and prosecuted/sued relentlessly into the poor house.

    • Unfortunately most if not all prosecutors are immune to most if not any prosecution, even when wrongdoing is proven, like knowingly and intentionally withholding exonerating evidence in death sentence cases that results in knowingly sending innocent people (mostly blacks) to their deaths.

      • Are they not overseen by state bar/professional regulation for professional mis-/malfeasonse?

        • see, this is about the only time I feel mob justice/vigilante lynching to be a appropriate response. you have a person who is dedicated to destroying those who exercise their basic right of self defense, who is regulated by like minded individuals, that does whatever the hell they want to a select few of the population.

          CA is the same as the South after the civil war. So what if the law says this and that. you a gun owner? then its “yes massa” and “no massa”, don’t dare presume that the written law will help you, cause we will find 12 who think like we do and you will be and the end of a rope.

          And no offense to any actual southerners here (god bless, the south will rise again), but if anyone wants to do a social experiment, try moving to CA with a few guns that are not approved or fit the AWB guidelines. You will feel what its like to be shit on by every govt official, your rights stripped and generally treated like a 2nd class citizen. Yes, I plan on leaving someday, but I have a decent job that makes a very positive impact with the local population, so I will scrap and bow until the day I liberate myself to Nevada.

      • Yeah, this a$%hat had substantial resources to do this, using taxpayer funds/lawyers at no personal risk to himself and protected by the law from suits. We really need to strip immunity from government folks under these circumstances, so they can be sued.

        • Asking a runaway totalitarian legal system to police itself is pure folly. All it accomplishes is providing them yet another way of legitimizing themselves. Just like their beloved saints Demooocraciii and “Ruuuul of laaaaw” does.

  2. ****The bottom line, the DA said, is that Simon was not justified in firing at an unarmed man, adding the judge’s decision deprives the county of a jury trial on the core issue: Under the circumstances, “What is the appropriate reasonable response?”***

    Turds like that DA are why some folks are scared to modify their weapons. While I live in a part of America where the DA and the local police wouldnt care if I carried a 40mm grenade launcher, not everyone can say that.

    We should fix that .

    • An intruder in your home is presumed to intend to do the occupants harm–and this statutory presumption that the DA must overcome by proof beyond a reasonable doubt, doesn’t say a damn thing about whether the intruder is armed or stark naked. The only way this DA could have possibly prevailed was by harping on the anti0-gun prejudices of a Marin County jury–which is why he was going on so about the gun collection, apparently trying to draw from the number of guns that the good Doctor was just looking to kill someone, because “no one needs that many guns. Guns should be banned. guns make us unsafe. Send a message to Dr. Simon that is criminally inappropriate to keep guns in your home.”

    • In my part of the country, some of the local police would be mad if I didn’t invite them to the range to fire that 40mm.

  4. We in California have been following this case for a long time. The facts as reported in the newspapers reflected a solid self-defense case. The filings are clearly politically motivated, and I think that Ed ought to be reported to the State Bar for misconduct. This was a clear travesty of justice. In a road rage incident, Osenton (the enraged driver) followed Dr. Simon home, and, most importantly, drove into Dr. Simon’s closing garage door. I am a little fuzzy, but I think Osenton even hit the rear of Dr. Simon’s car, and then got out and walked threateningly toward Dr. Simon. Dr. Simon retrieved a handgun (from where I don’t know, but I don’t think he had a CCW, Marin being one of those ultraliberal virtual no issue counties, a fact of which its sheriff is very proud), fired two warning shots, and then shot the Osenton when he did not back off. How could it be any clearer?

    • P.S.: As of December 2013 (the last year for which data is available*), Marin County SO had issued 18 civilian CCWs. with an additional 11 issued by local PDs, out of a population of 254,000. (“Interestingly,” the sheriff had issued 22 CCWs to reserve officers.)

      *The data on CCWs was released by the Ca. Department of Justice. However, it has not released any information since, AFAIK, suggesting that the DOJ is “upset” under the leadership of Kamala Harris (another avowed gun banner who is running to replace Babara Boxer) that this data is being used as evidence in cases to defeat the “may issue” law.

    • “Dr. Simon retrieved a handgun (from where I don’t know, but I don’t think he had a CCW, …”

      From the article:

      “Osenton stopped when Simon’s garage door closed and hit the hood of his car, got out and was hit by a bullet after Simon fired a warning shot from a .357-caliber revolver kept in the garage.”

      Add garage carry to shower carry, I suppose… (humor)

      Actually, I see garage carry the same as having one near the front door of one’s home.

        • “Or “garage” means “illegally in my car but I don’t want to say that.””

          I was being kinda flippant with my comment.

          Your interpretation may very well be the truth.

          A bit like these bullshit gun storage laws. All someone has to do is have a bedroom biometric safe and just leave the damn thing open.

          “Why, yes Officer JackBoot, a noise woke me up and I retrieved my gun from the safe…”

  5. “Berberian insisted that having so many was inappropriate for the community, and was an important factor in prosecuting the case.”

    File this under, “Making shit up as you go” and “Petty tyranny for petty tyrants.”

  6. Here are the places on earth that I refuse to visit because of repressive governments: North Korea, Iran, ISIS occupied territory, Somalia, Zimbabwe, Sudan, Myanmar, Laos, and California. (This is my real list. I was one of the many people who cheered in the movie theater while watching “2012” when Los Angeles slipped into the ocean.)

  7. Sue the individual officers for the seizure,forcing them to hire their own legal counsel . Watch how quickly they return the guns after these cops have to put up 10K for a retainer.

      • Even better–for acts alleged to have occurred in the course and scope of employment, a public employee is entitled to a defense by the employing agency. And indemnity against damages. By statute. (The defense only goes bye-bye if there is proof that the employee engaged in intentionally tortious acts.)

    • Marin county, like my home of Alameda county is not going to vote in pro gun, pro constitution officials. Which is why I constantly harp on the fact that 2a and the constitution have no provision to null them based on zip code.

      And any cops that ignore a court order to restore a persons property should be standing in front of the issuing judge in handcuffs, explaining their point of view right before he puts them away.

  9. To an anti-gun zealot, a gun is a gun is a gun. A collectable from the World Wars or a modern sporting rifle makes no difference. It is an object to be seized and destroyed. The owner is taken away for further (enhanced) interrogation to determine the extent of their crimes.

    Downunder such zealots are also known as The Greens party.

  11. It truly appears to be more of a political CA issue which has run amok with progressive left roots. The same case, if it occurred in AZ would likely have been handled quite differently.

    • It is not a state thing. DAs are locally elected by county. I can assure you that this crap would not have occurred in my county a few hundred miles north.

  12. Let me help you…
    In Marin county, he will never….ever……ever see those guns again. He’ll get a check for whatever he can sue Marin for, thats it.

  13. “Most of the guns were WWII collectibles and hunting arms.” You lost me here, because I don’t care if they were Ruger single shots or full auto. They were his to own.

  15. Why can’t this DA be prosecuted for using his office to execute a vendetta?

    • Prosecutorial immunity from civil actions for damages is absolute and has been for a long, long time at local levels. The Supreme Court first ruled on it in 1976 in Imbler v. Pachtman. It’s worth reading for the history of the idea.

      http://caselaw.findlaw.com/us-supreme-court/424/409.html

      The first case was Griffith v. Slinkard (how appropriate,,,) in which it was alleged that back in the 1890s, prosecutor Slinkard, with no probable cause, tried to get a Grand Jury to indict Griffith. Then Slinkard forged Griffith’s name on a Grand Jury true bill after the Grand Jury refused to indict him, had Griffith arrested, dragged along in the system, then dismissed the case just before trial. Then Slinkard did it again. And again. Several times. Finally Griffith sued Slinkard and the Indiana Supreme Court ruled the case had to be thrown out because a prosecutor is immune to suit for anything he does as a prosecutor, no matter how outrageous.

      Since then this rule has been extended to the employees of a prosecutor. In Rehberg v. Paulk, 2011, Rehberg had fired off faxes criticizing the local hospital’s billing practices. As a favor to the hospital, the prosecutor initiated charges against Rehberg by Grand Jury. The prosecutor’s investigator lied to the Grand Jury and Rehberg was charged with burglary, aggravated assault, and six counts of harassing phone calls. Rehberg got charges dismissed. Then the prosecutor did it again, and again. Rehberg sued and the case was dismissed on prosecutorial immunity.

      Marin County 2A supporters have no protection but the ballot box or the California Bar Disciplinary Committee. Lots of luck.

      Plus, there’s not a thing to keep the prosecutor from doing it again tomorrow.

  16. California was a wonderful place when I grew up their in the 1970’s. Now I’m living in the free state of Kentucky. So long to the slave state of California. Good luck to those still held in chains there.

  17. Reading the comments on that article reminded me why I left. I’m a native Californian, and leaving is one of the best things I’ve ever done. I understand the “stand and fight” mindset, but I figure I’d rather vote with my feet, enjoy a far superior quality of life, and deny the state mine and my wife’s tax revenue. Let the lefties foot the bill for the bums, illegals, and oppressive state government.

  18. Having lived in the Democratic suck ass state and having conversed with real People, transplanted 2nd and 3rd generation, of real Californians not the Plastic Politicians and their ilk, most are as pissed off as us! problem is they take it in the shorts by inactivity, like most of us it is easier to Say than do, DA is Ducks Ass for us uneducated peoples and this case proves it!
    so mister DA is doing his thing wasting money doing his thing, lets make him pay the bills out of personnel funds if he looses again!

  20. Dr. Simon was almost “Zimmermanned” but two judges saved him. The Florida DA was allowed to make a mockery of justice in Zimmerman’s case. Florida is even worse – moron judges.

    “Every normal man must be tempted, at times, to spit on his hands, hoist the black flag, and begin slitting throats.”
    H. L. Mencken

  21. Berberian should be disbarred as a bare minimum based on what the judge said about this punk.

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