Pubdate: Sat, 03 Apr 1999
Source: Houston Chronicle (TX)
Copyright: 1999 Houston Chronicle
Contact:  http://www.chron.com/
Forum: http://www.chron.com/content/hcitalk/index.html
Author: Steve Brewer

OREGON'S FAMILY CLEARS A HURDLE

Keeping Brother Off Stand Helps Suit

The federal civil rights lawsuit over the death of Pedro Oregon
Navarro hasn't gone to court yet, but his family's lawyers have
already won a small victory.

By keeping Oregon's brother, Rogelio, off the stand in the recent
misdemeanor criminal trespass trial of former Houston police Officer
James Willis, attorneys for the family have protected their key
witness in the civil rights suit, several criminal defense lawyers
agree.

Though lawyers for the Oregon family deny that keeping Rogelio from
testifying was done with that in mind, it did mean that he did not
have to confront publicly allegations that he and his brothers were
crack dealers.

"Oh boy, did you want to keep him off the stand," said Stanley
Schneider, a Houston criminal defense lawyer who has handled several
high-profile cases. "That's because once he starts testifying, it's
open season."

Brian Wice, a local defense attorney and legal analyst for a Houston
television station, agreed.

Rogelio Oregon answered the door July 12 when six uniformed police
officers, acting on an informant's tip, but without a warrant, came to
his apartment looking for drugs. One of the officers testified that
Rogelio tried to run but was grabbed by the first officers in the
door. The other officers moved quickly to the back of the apartment
and found Pedro Oregon in a bedroom.

The officers have said Pedro pointed a gun at them. One officer fired,
hitting a partner. The other officers thought Pedro had fired and they
fired, hitting Pedro with 12 of 33 shots, nine to the back. One
officer fired 24 times.

No drugs were found. The officers have all been fired, but only Willis
was charged, and that was just a misdemeanor.

That has outraged the family and activists. A federal grand jury probe
has begun and the family has sued the city.

Rogelio Oregon's lawyers tried to get Harris County District Attorney
John B. Holmes Jr. to drop the charge against Willis, calling it an
insult to the family, and defer to the federal probe. Holmes refused.

Furthermore, Ed Porter, who was prosecuting Willis, said he had to
have Rogelio testify about how the police got into the apartment,
which was the key issue in the trespass charge.

Richard Mithoff, the lead attorney representing the family in the
civil suit, and Flood both say it was important to keep Rogelio off
the stand, because he had no faith in the state's prosecution of
Willis. They said he thought his brother's death deserved more serious
charges, and he preferred to cooperate with the federal
investigation.

Mithoff and Flood vehemently deny that keeping him from testifying had
anything to do with the fact that earlier in the trial jurors had
heard testimony that he had been dealing drugs. They challenged the
validity of that testimony.

After dodging a subpoena for weeks, Rogelio eventually was brought to
the stand.

Porter offered him "use immunity" -- a promise that he would not be
charged for drug dealing in exchange for truthful testimony -- to
compel his testimony.

Flood then argued to Harris County Criminal Court-at-Law Judge Neel
Richardson that Porter couldn't compel the testimony merely by
offering use immunity.

Flood said he was not worried about the allegations of drug dealing,
but rather that his client might be prosecuted for minor
inconsistencies between what he might say and his testimony to the
state grand jury.

Even though state law makes a perjury prosecution on such grounds
unrealistic, Richardson allowed Rogelio to take the Fifth Amendment.

Schneider, Wice and other lawyers say keeping Rogelio from testifying
was a deft move that allowed the attorneys to respond to the drug
allegations by criticizing Porter's case without exposing Rogelio to
cross-examination from Brian Benken, Willis' attorney.

And because Rogelio didn't testify, Benken couldn't call three other
witnesses who were ready to say they had bought drugs from Rogelio.
Because he had not testified he had not been dealing drugs, they
couldn't be called to impeach his testimony.

It also possibly puts the attorneys representing the city in the civil
suit in a tough spot, legal observers say. Rogelio Oregon has only
testified in front of state and federal grand juries. That testimony
would only be available to attorneys for the police officers if they
were indicted for criminal charges in federal court.

And because he didn't testify in Willis' case, they have nothing to
use against him when and if he gets on the stand in civil court,
Schneider and Wice agreed.

Mithoff insists that wasn't the objective, saying he and Flood were
only trying to respect Rogelio's wish not to testify in Willis' case.
But Mithoff does acknowledge that keeping Rogelio from testifying did
make good legal sense:

"I don't think any lawyer wants to see his client asked the same
questions on four different occasions."
- ---
MAP posted-by: Derek Rea