Likewise, the gun that police say was Peralta's--and that he allegedly pointed at Montoya--was also fully loaded, with a bullet in the chamber. But it had not been fired either.
At the time, the district attorney's office did not seem to think this was odd.
Prosecutors threw the book at Peralta. They charged him not only with assaulting police officers by pointing a gun at them, but also with Saldana's murder, on the theory that his having pointed a gun at Montoya set off the chain of events that led to Saldana's being shot.
Defense attorney Bruce Brown was assigned the case. Brown is a former deputy public defender who went into practice for himself and now takes court-assigned work at $50 an hour defending indigents whom public defender offices can't help.
He met his client in a court lockup. "He was bandaged. He was in pain physically, and he was complaining because of having been shot by police for no reason," Brown said. "He maintained his innocence."
Defense attorneys say innocence is the initial story of most clients. A former colleague of Brown, Alternate Deputy Public Defender Michael Russo, said, "A majority of the time people tell you, 'I didn't do it. I didn't have the dope. I didn't have the gun. I didn't shoot that guy, steal that wallet.' The challenge is to try to act the same every time you hear that and go out and investigate it."
The challenge frequently is not met. Public defender officials say their lawyers request investigations in only one case out of three.
Brown asked the court to appoint a private investigator he uses, compensated at $25 an hour, and together they headed off to check out the apartment house that was the scene of the crime. Brown said he came away feeling that something about the police story was not right. His investigator located the bystander who had been wounded coming downstairs and subpoenaed him.
After police testified at the preliminary hearing, the defense called the wounded man, Salvador Albarenga Ochoa, who testified that he had seen the defendant running up the stairs. He estimated that he and the defendant had been four to six feet apart.
"Did you see whether or not he had a gun in his hand?" he was asked.
"No, I didn't see him have any weapon, no."
Albarenga said that he saw police raise their weapons at the defendant and that he heard the shot that felled the defendant and himself.
"Did you ever see [the defendant] point a gun at anybody?" he was asked.
"No, no, I honestly did not."
Municipal Judge Kathleen Kennedy-Powell, a former prosecutor, dismissed the murder charge, saying she could see no basis for it. But she ordered Peralta to stand trial on the assault charge, declaring, "I don't think necessarily Mr. Albarenga was in a position to know what occurred."
As the defendant's trial date approached, the prosecution offered Peralta a nine-year sentence in return for a guilty plea. He turned it down. The trial was scheduled for Christmas week, 1996. Prosecutors said their key witness, Officer Montoya, was unavailable. They dismissed the case, quickly refiled it and it was set for a preliminary hearing again.
This time, defense lawyer Brown did not get a chance to shake Montoya's story because Montoya did not testify. The only police witness was an officer who had been in the observation post across the street from the building, who testified secondhand about what Montoya had told him.
But this time the defense had another witness, who contradicted Montoya's account.
A 16-year-old high school student not affiliated with any gang said he had been standing just inside the apartment building, holding open the front door when the defendant came in. The defendant, he said, was not holding a gun.
The boy said he saw police run after the defendant as the defendant climbed the stairs. "They aimed at him," he said. "They raised a rifle that one of them had and, when he was going up the steps, they shot."
"And could you see what [the defendant] was doing just before the officer did that?"
"He was walking up."
"Before he was shot, did you ever see [the defendant] point a gun at the police officer who shot him?"
Judge Kennedy-Powell interrupted the lawyers' questioning to ask clarifying questions of her own.
"When you were looking at the officer with the shotgun raised to the right shoulder, at that moment could you see [the defendant]?" she asked.
"Yes," the witness replied. "He was going up."
"You could see both the officer and [the defendant] at the same time?" the judge asked again.
But a few minutes later Kennedy-Powell rejected a defense motion to dismiss the case because, she said, no one had asked the witness the most important question: whether he could see the defendant's hands.