The two ballistics tests provided to Beverly Hills police had estimated that the shooter was at least 15 feet away--and most likely 25 to 30 feet from the victim. Physician statements and hospital records confirmed that Scheid was hit in the back of the legs. Rundle sought further analysis by the consultant who conducted the second test. So he dressed a mannequin in Scheid's blood-stained pants and inserted rods to show the path of the buckshot. Rundle believed the photos of the experiment showed that the pellets entered at a side angle, which indicated that he could have been turning away from Sterling at the time. She said the angle could suggest that Sterling started the motion to fire when Scheid was coming at him, then discharged the weapon simultaneously with Scheid's starting to twist away. In police terms, this is known as "lag time."
Douglas, in an earlier memo to prosecutors, had already disagreed with that theory. The shot came primarily from behind, he said. "The firing of the initial round by Sterling eliminates the 'lag time' factor. If Scheid had suddenly changed his position, it would have been as a reaction to the first shot, and not the second one," Douglas wrote. His point is that when Sterling prepared to fire the second shot, a couple of seconds after the first, Scheid would not have been threatening him.
As for Donald Sterling's comments to Det. Hopkins, Rundle said she was "outraged" by them, but she did not feel they warranted prosecution.
Asked about her recommendations later, Rundle bridled at any question about her motivation. "I am deeply offended that anyone-- anyone--would try to say that my recommendation not to file this case was based in any way on who Donald Sterling is, who he may know, or who he may be friends with. Before I was handed this case I had never heard of Donald Sterling. I couldn't care less who he is . . . . I wanted to file it. But in order to [do so], I had to have corroboration [supporting witnesses] of my victim. I am not allowed to file a one-on-one case without corroboration, and ultimately that was what this was. I spent a year of my life trying to corroborate Philip Scheid's story, and I could not do that."
Garcetti's office failed to respond to inquiries by The Times about ties between him and Sterling. Sterling co-sponsored a $500-per-person fund-raiser for Garcetti on Oct. 5, a month before he lost his bid for reelection. Both Scott and Donald Sterling, through a lawyer, declined to answer questions about the incident, as did Hodgman.
Scheid has filed suit against the Sterlings, and they have countersued him. Scheid's lawyer, John Girardi, has told him not to talk to the press about the case, although Scheid did speak to another reporter for this magazine last spring.
It is not unusual for police and prosecutors to disagree about cases, although the police have taken an uncommonly strong position on this one. Donald Sterling's ties to law enforcement may have had nothing to do with the decision not to prosecute. Certainly a prosecutor would not relish having intense scrutiny from supervisors three levels up as she investigated a case. Under their gaze, small wrinkles that would be taken in stride in a normal case can become huge when imagining the specter of doing battle with formidable defense attorneys such as Barry Scheck or Johnnie Cochran.
Criminal law specialists concede that prosecuting Sterling would not be easy, given the absence of witnesses who saw the fight. But they all return to the facts that a man was wounded by a shotgun blast in a quiet residential neighborhood, that the physical evidence strongly indicates the shot came from behind, and that the slow deliberations and top-level involvement in the D.A.'s office suggest special treatment.
"Why would Hodgman be involved?" asks Stan Goldman, professor of criminal law at Loyola Law School. "Ordinarily he is called in on death penalty cases. One wonders, if this were the son of an East L.A. truck driver--as I once was--if it would climb that high."
San Diego criminal defense attorney Christopher Plourd said that given the facts of the case, "I would expect a filing. Unless the favorable evidence was overwhelming, it would be very tough to defend a shooting from behind as self-defense."
"Someone is shot from behind and not even a lesser weapons charge, not even a misdemeanor assault, is ever filed? That's absolutely astounding," says Kenneth F. Eichner, a Denver defense attorney who handled hundreds of gunshot cases as a prosecutor in the Washington, D.C., area. "If prosecutors move forward only on neat and clean cases, indictments will drop 50%. Isn't that why we leave these things to a jury?"
Asked about Rundle's concern that Sterling could refuse to testify, the lawyers pointed out that jurors could still be made aware of the 911 call and the phone conversation with Zoeller. Also, as a practical matter, they said, if someone claims self-defense, jurors might well wonder why he refused to testify.
Goldman also does not understand why prosecutors would refuse to push ahead with a case because the victim would make a weak witness. "How about Rafael Perez as the main witness in the Rampart case?" he asks, referring to the ex-police officer. "What's his credibility? If you had to corroborate every victim, how could you ever file some rape cases?"