Fifty days after former sheriff’s deputy Charles Foster was found guilty of assaulting Frances Pusok at the conclusion of a drawn out pursuit in April 2015, he and his Fresno-based attorney on May 19 accepted a plea to a misdemeanor charge of disturbing the peace, opting out of pursuing total vindication in a retrial.
Foster, like his two co-defendants in the trial, Michael Phelps and Nick Downey, now stands convicted of a far less serious charge than assault under the color of authority, which the prosecutor in the case, Senior Deputy San Bernardino County District Attorney Robert Bulloch, previously succeeded in convicting him on. The disturbing the peace charge was recorded as a misdemeanor.
The charges against Foster, Phelps and Downey stemmed from the events of April 9, 2015 which ensued after deputies arrived with a search warrant at the home of one of Pusok’s acquaintances. Pusok, who was himself just arriving at the Apple Valley residence when the deputies showed up en masse, had previous felony and misdemeanor convictions on resisting arrest, animal cruelty and attempted robbery charges. Thinking the officers were there because of him, Pusok escalated the chance circumstance into a mad and unnecessary dash for escape. Traveling by vehicle first through both the incorporated and unincorporated areas of Apple Valley and the unincorporated area of Hesperia, he moved onto dirt roads that led him to the Bowen’s Ranch area. He disembarked from his vehicle at the end of the roadway, and after running down the steep trail toward Deep Creek Hot Springs, stole a horse and set out on a wild ride across some extremely rugged terrain with nearly a dozen deputies, who likewise had exited their vehicles, in foot pursuit behind him. In short order, two sheriff’s helicopters were brought in and they began picking up and transporting some of the deputies giving chase to spots ahead of where Pusok on horseback appeared to be headed. Before the misadventure concluded, another helicopter, this one from the NBC television affiliate in Los Angeles, was hovering overhead as well, catching the chase on video. That video showed Pusok being thrown from the horse on a chaparral-strewn hilltop, then being swarmed upon by one arriving deputy after another and being pummeled while he lay on the ground.
The video depicted Pusok at first seeking to hide behind some chaparral immediately upon being thrown from the horse, but then surrendering as the deputies are advancing toward him, lying face down on the desert floor and putting his arms flat on the ground even before the first of the arriving deputies made contact with him. As he complies with commands to put his hands behind his back and is placing them, while he is still prone, on the small of his back, his captors descend on him, and began kicking and striking him repeatedly. Within the first 45 seconds of the first physical contact between the deputies and Pusok, eight deputies are seen in the video hovering over him, with several of them administering blows and kicks and occasional stomps. At slightly over one minute after the first physical contact, two of the original eight deputies have backed away. With six deputies clustered over him, an effort to handcuff or tie him in some fashion seems to be progressing. But at one minute and 17 seconds after the first contact and again at one minute 21 seconds after the first contact, one of the deputies appears to stomp on him. The last unequivocal overt display of physical force against Pusok on the video comes at one minute and 32 seconds when for four seconds two other deputies appear to be punching and kicking him. At one minute and 51 seconds after the first contact, for five seconds, with several of the deputies yet hunched over Pusok, one of them is visibly swinging his arm back and forth rapidly, though it is not clear whether he is punching Pusok or perhaps cinching up some form of ligature.
Phelps, Foster, and Downey were identified and charged on September 1, 2015. It had been widely noted by many, including other members of the sheriff’s department, that Foster, Phelps and Downey were among the youngest and lowest ranking of the contingent of officers that converged on Pusok, and that at least five of their sheriff’s department colleagues can be seen in the video raining blows, kicking or stepping upon Pusok after he was in a prone position. One of those officers on the scene was the scion of a former top ranking member of the department who is himself on a career trajectory that will likely take him into the command echelon. This gave rise to the insinuation that Downey, Foster and Phelps were in some measure scapegoated.
The attorneys representing the three, Michael Schwartz in the case of Downey, Kasey A. Castillo on behalf of Phelps, and Phillips representing Foster, at trial before Judge Dwight Moore conceded nothing, arguing that Pusok was fleeing, representing a danger to others, and that those pursuing him had been informed shortly after the pursuit started based upon an identification of his vehicle’s license plate number of who he was and his accompanying criminal record. The deputies thus had grounds to believe Pusok was a dangerous and unpredictable criminal against whom they were justified in using whatever level of force was necessary to bring him into custody, the defense lawyers contended.
The jury clearly rejected those assertions in the case of Foster and he was convicted on March 30 in a unanimous verdict; two thirds of the jury on the same day rejected those assertions with regard to Phelps and Downey, deadlocking in an 8 to 4 verdict in favor of conviction against both former officers.
Four days later, with the district attorney’s office and the two defendants’ attorneys set for an April 21 pre-trial hearing on a second trial, Phelps and Downey entered guilty pleas to misdemeanor disturbing the peace charges, and the case, minus a yet-to-be-filed appeal by Phillips of Foster’s conviction, was brought to a close.
On May 19, Judge Moore had considered Phillips’ motion for providing Foster with a new trial, based upon instructional error during the final arguments in the case as well as Phillips’ contention that the evidence of her client’s guilt was insufficient to justify a conviction.
During his closing argument and in his rebuttal to the closing statements of the defense attorneys, Bulloch engaged in an animated and free-ranging condemnation of the accused, referencing Scripture and the parable of the Good Samaritan, and at one point asserting, “We have to have the will to take on the machine of the San Bernardino County Sheriff’s Department” which he said was home to a “culture of violence” maintained through a “code of silence.”
Moore, who credited himself with being a “thirteenth juror,” said he watched the video with the jury numerous times during the trial. He said he had viewed it during pretrial and since the end of the trial. He said he did not feel he could conclude beyond a reasonable doubt that Foster committed the crime of which he was accused and convicted. With regard to a portion of the videotape in which Foster is seen kicking the prone Pusak, Moore said, “I can see the leg move but I cannot say if in fact the kick was delivered.” With regard to Phillips’ claim of instructional error, Moore conceded it might have resulted in confusing the jurors. That confusion, Moore said, combined with “scant evidence of the assault,” along with language on belt tape recordings “led to the jury reaching a conclusion that I do not think was supported by the evidence.”
Moore receded, however, from ruling upon allegations of impropriety by Bulloch, saying the co-existing evidence supporting a new trial did not make ruling on the prosecutorial misconduct allegation necessary in so far as Foster was concerned.
“I chose not to address those issues,” Moore said. If Moore had made a determination of prosecutorial misconduct on Bulloch’s part it would have triggered a full blown State Bar investigation of Bulloch and the district attorney’s office.
Less than four hours after Moore made his ruling, Phillips returned to the courtroom where on behalf of Foster she accepted a plea arrangement identical to those offered and accepted by Downey and Phelps – disturbing the peace. That brought the prosecution to a close.
Downey, Phelps and Foster were previously terminated from their positions with the department. There has yet to be confirmation that they will seek reinstatement with the department.