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By PORAC | July 1, 2017 | Posted in PORAC LDF News

Officer Exonerated by Grand Jury in Officer-Involved Shooting

JUDITH A. ODBERT
Senior Associate Attorney
JOSHUA A. OLANDER
Associate Attorney
Mastagni Holstedt, APC

These are disconcerting times, when law enforcement faces criticism unparalleled in our nation’s history. In June 2015, Officer Joshua Klinge of the South Lake Tahoe Police Department was in an officer-involved shooting that resulted in the death of the suspect. Following a nearly two-year battle with the El Dorado County District Attorney’s Office that reached the Third District Court of Appeal, Officer Klinge was finally cleared of any criminal wrongdoing by the El Dorado County grand jury. Attorneys Judith A. Odbert, Joshua A. Olander and Tashayla D. Billington of Mastagni Holstedt, APC, fought tirelessly to protect Klinge’s rights and freedom until he was finally exonerated in March 2017, when the grand jury refused to issue an indictment.

In June 2015, in the early morning hours, officers were dispatched to a domestic violence call in a high-crime area well-known for narcotics activity. During the initial contact, officers became aware that the suspect was attempting to flee through a window leading to a back alley. After responding to the dark alleyway, Officer Klinge turned a corner to discover the suspect perched in the window. The suspect refused to comply with Klinge’s commands. Klinge reported that the suspect, whom he knew from previous arrests for narcotics and firearms, made no attempt to flee and instead stared menacingly at the officer before raising his hand in a pistol-grip manner. Fearing for his life, Klinge discharged his weapon once, striking the suspect. A firearm was not recovered.

Klinge’s actions were justified under the circumstances. Despite the evidence that the shooting was justified, the District Attorney’s Office nonetheless announced its intent to present the case to its grand jury for indictment. However, the decision to present Klinge’s case to the grand jury was largely based on the District Attorney’s desire to challenge new California law excluding these cases from its jurisdiction. In 2015, California passed Assembly Bill 109, a law intended to increase transparency in officer-involved shooting investigations by removing them from the jurisdiction of the secret grand jury system, thereby forcing prosecutors to make the charging decisions. The El Dorado County District Attorney’s Office intentionally convened the criminal grand jury and began its investigation after January 1, 2016, with the stated purpose of challenging
the new law.

After the grand jury was convened to investigate Klinge and challenge Penal Code sections 917(b) and 919(c) as unconstitutional, Judith Odbert filed and successfully argued motions to discharge the grand jury and quash all related subpoenas. The Superior Court judge held that the grand jury was convened in violation of the new law and granted every motion filed on behalf of Klinge. In a rare occurrence due to the secretive nature of grand jury proceedings, the grand jury was discharged from its investigation of Klinge.

The El Dorado County District Attorney appealed the Superior Court’s decision to the Third District Court of Appeal. Following thorough briefing by both sides, in addition to the filing of a variety of amicus briefs, oral argument was held in a special session at the University of California Davis School of Law. Ultimately, the court of appeal held that the new law prohibiting district attorneys from presenting officer-involved shootings to a criminal grand jury was an unconstitutional substantive change to the jurisdiction of grand juries in California.

Following the court of appeal’s decision, the El Dorado County District Attorney’s Office announced its intent to reconvene the criminal grand jury to investigate Klinge. Confident in Klinge’s innocence, his attorneys rejected a plea bargain proposed by the District Attorney and opted to let the investigation proceed to the grand jury. In March 2017, with his counsel Joshua Olander, Klinge testified before the grand jury. The following week, the grand jury completed its investigation and declared that the evidence was insufficient to indict Klinge.

Klinge was placed in a position that no officer envies, and was forced to make a split-second decision to ensure that he would return home to his wife and children at the end of his shift. The unjust scrutiny Klinge faced in the aftermath of his critical incident had a traumatic impact on him and his family. Due to the unwavering support of the PORAC Legal Defense Fund, Mastagni Holstedt, APC, was able to successfully defend Officer Klinge and secure a just outcome.

About the Authors

Judith A. Odbert is a senior associate attorney in the Labor and Employment Department at Mastagni Holstedt, APC. Prior to joining the firm, Judith served as the supervising assistant public defender in the Sacramento County Public Defender’s Office. Over her 30 years of practice, Judith has successfully handled both litigation and trials, including homicide, sexual assaults, gang enhancements, aggravated assaults, domestic violence and general felony practice.

Joshua A. Olander is an associate attorney in the Labor and Employment Department at Mastagni Holstedt, APC. He represents public-sector employees in administrative and disciplinary investigations, hearings, critical incident investigations and criminal defense.