Brandishing firearm: Why jury acquitted deputy in courtroom incident

Court was not in session on April 13, 2015, when, in the presence of a custodian, a court clerk and a court reporter, Deputy Andy Mar of the San Mateo County Sheriff’s Office, on temporary duty as a bailiff, took his gun out of its holster. Custodian Jose Verdusco alleged that Mr. Mar then pointed the gun at him.

Deputies were called to the scene and Mr. Mar told a deputy, “I did it,” according to an account of the incident by District Attorney Steve Wagstaffe. But what did he do?

On Aug. 29, 2016, after a three-day trial and about four hours of deliberation, a jury acquitted Mr. Mar of the one charge he was facing: misdemeanor brandishing of a firearm.

In an interview, Deputy District Attorney Deshawn Madha noted the inherent ambiguity of those three words from Mr. Mar. “That’s basically what I had: ‘I did it,'” he said. It turned out not to be clear what Mr. Mar was saying that he did.

This case presented two challenges for prosecutors, Mr. Madha said: conflicting evidence about what actually happened, and the fact that the defendant was a peace officer.

Mr. Mar’s attorney did not respond to requests for an interview.

Conflicting evidence

“The issue was not did he (draw) his firearm,” Mr. Madha said. “It was a matter of did he violate the law. It’s only a crime if you brandish it.” The state penal code defines brandishing as drawing or exhibiting a loaded firearm in a rude, angry, or threatening manner.

Where Mr. Mar did point his gun? “It depends on who you believe,” Mr. Madha said. “The custodian said Mar pointed it directly at him. Mar says he never pointed the gun at the custodian, but pointed it at a wall. None of the witnesses were helpful in terms of corroborating where the gun was pointed. There wasn’t anything for the jury to hang on to,” Mr. Madha said.

The court reporter and court clerk who witnessed the incident “are people who, in general, have a very detached perspective,” Mr. Madha said. “They are observers.” But it’s one thing to be observing in a courtroom and quite another to be testifying. They were “quite nervous” on the stand, Mr. Madha said.

Having witnesses might seem a big advantage, but jurors still judge the credibility of what they’re hearing, Mr. Madha said. Attorneys are in the dark as to the jurors’ perceptions. “It’s a one-way street, talking to jurors,” he said.

Mr. Verdusco, the custodian, is also suing Mr. Mar in civil court, alleging assault as well as false imprisonment, intentional and negligent infliction of emotional distress, and a civil-rights violation. San Mateo County is named as a co-defendant and accused of negligent hiring, training, supervision and retention.

The civil complaint describes the incident. “Without cause or provocation,” Mr. Verdusco says, Mr. Mar pulled his loaded gun from his holster and pointed it at Mr. Verdusco with his finger on the trigger and said, “You want some South Carolina justice?” (A week earlier, a white police officer from North Charleston, South Carolina, had shot and killed an unarmed black man with his back to the officer and running away.)

This alleged threat came up in the criminal trial, but no one could corroborate Mr. Verdusco’s account of what was said, Mr. Madha said.

The jury also heard five minutes of testimony by defense witnesses as to the character of Mr. Mar, a privilege not allowed plaintiffs except in cases of self defense, Mr. Madha said.

In addition to being allowed witnesses to testify as to his character, Mr. Mar had an inherent advantage in being in law enforcement. “There’s a common understanding (among prosecutors) that a jury will give the benefit of the doubt maybe more often than if it wasn’t a peace officer, Assistant District Attorney Al Serrato told the Almanac in an earlier interview. Such cases are “always challenging,” he said.

“It’s been very interesting. We don’t get cases like this every day,” Mr. Madha said. “I was disappointed (with the outcome), but you win some and you lose some.”

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