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SALT LAKE CITY — A judge planned to spend the night deciding whether to order former West Valley police detective Shaun Cowley to stand trial on a charge of manslaughter.
At the conclusion of a three-day preliminary hearing Wednesday for Cowley, 3rd District Judge L.A. Dever said he would resume court at 2 p.m. Thursday to announce his decision.
Even though the standard of evidence that prosecutors have to meet for a case to be bound over for trial is relatively low, Cowley's preliminary hearing took on the feel of an actual trial.
Attorneys on both sides said they weren't surprised that Dever delayed his ruling.
"I would have been surprised if he would have issued a decision today out of all the information he has to consider," said Salt Lake County deputy district attorney Blake Nakamura. "This was going to be a difficult case, we knew that from the onset, for a variety of reasons. Our job is simply to present those cases that we believe we have the evidence to support the charges. What happens thereafter — decisions by a court, decisions by a jury — that's not our job. That's not our interest."
Nakamura said the trial phase, where the state must prove its case beyond a reasonable doubt, is a completely different standard and a question that should be presented to a jury.
"We're confident at this point the judge is really looking at how this cannot be appealed, (and) not bind it over," defense attorney Lindsay Jarvis said.
"We're pleased he's going to look at the evidence carefully, because we believe the longer you look at the evidence, the weaker it becomes," added co-counsel Paul Cassell. "We're very hopeful (Thursday) this case will be over. … We're hopeful that tomorrow will be a good day for Shaun."
Cowley, who has sat listening to three days of testimony and was not called to the witness stand, left the courtroom Wednesday showing more emotion than he had since the start of the hearing. Others in his group were wiping away tears as they left. Cowley declined comment to reporters.
Danielle Willard, 21, was shot and killed during an undercover drug investigation in November of 2012. Salt Lake County District Attorney Sim Gill later determined that the shooting was not legally justified and he filed a criminal charge of manslaughter, a second-degree felony, against Cowley.
Over this week's hearing, a lot of testimony discussed where Cowley was standing when he fired his two shots, the first striking Willard in the head and killing her; whether he was hit by her car, or whether he was even in danger of being hit by her backing vehicle; and the angles from which the shots were taken.
As one of the defense's final witnesses on Wednesday, they recalled West Valley police detective David Greco to the stand. Greco, a state witness who sat at the prosecution's table for three days, was one of the lead investigators into the Willard shooting.
During questioning, the defense said Greco used the term "pinch point" to describe Cowley's position that day. A pinch point, Cassell said, is when an officer is stuck in a position where that officer may be killed or seriously injured.
I've been a lawyer now for more than 30 years, and I've never seen a case, in my experience, where the government's own case agent admits that the defendant is in danger.
–Paul Cassell, defense attorney
"I've been a lawyer now for more than 30 years, and I've never seen a case, in my experience, where the government's own case agent admits that the defendant is in danger. And then we asked him (on the stand), 'Did this man commit a crime?' And the government's own agent said he didn't want to answer that question," Cassell said.
Prosecutors, however, contended that Greco never said Cowley was in a position where he faced imminent danger.
Defense attorneys also took issue with the testimony of Salt Lake police homicide detective Chris Kotrodimos, who was asked to give the district attorney's office an opinion of the Willard shooting. He believes the shooting was not justified. The defense team spent a lot of time attacking Kotrodimos' credibility.
At one point Wednesday, Dever even asked Nakamura whether he should ignore the state's own witness, Kortrodimos, because some of his comments seemed to support the defense's version of events.
Nakamura, however, noted that Kotrodimos said while Cowley did not intend to kill Willard, his actions were reckless and unreasonable. It was not reasonable for Cowley to believe his life was in imminent danger, he said.
The defense team continued Wednesday to talk about the panel of five police officers the district attorney's office consulted with before filing charges. Jarvis contends that Gill said the panel unanimously agreed that a criminal charge should be filed against Cowley.
On Tuesday, Cowley's attorneys submitted a signed statement from Unified Police Sgt. Jason Jones, who said he was one of the five panel members and did not offer any such opinion.
Wednesday, the defense said Greco was another panel member who did not recommend charges. Yet Greco said he was not on the five-member panel.
Regardless, Nakamura said the issue of the "panel" is irrelevant to the case, aside from the defense claims being "absolutely not true." He said some of the sworn statements by Jones submitted to the court are "flat out wrong."
Nakamura said the district attorney's entire screening process for criminal charges includes officers' recommendations on cases, even today.
"Code Blue is still alive and well. I get that," Nakamura said, noting that police officers will typically stick up for each other.
Dever apparently agreed with Nakamura, asking him what relevance the panel has to the case.
Chris Lawrence, a police instructor from Canada who specializes in force science, or the study of use of force, also testified for the defense Wednesday. He mathematically calculated that Cowley likely had 2.5 seconds to react to Willard's vehicle backing out, draw his weapon and fire. Lawrence said based on his study of the case, he believes Willard's vehicle, which was backing out in an arc-shaped trajectory, would have hit Cowley based on their projected paths.
Cowley claims Willard's vehicle did hit him in the knee. Kotrodimos previously testified that it was his conclusion that Cowley was not hit.
One witness who was expected to be key for the defense invoked his Fifth Amendment right not to self-incriminate and refused to come out of his holding cell to testify.
David Gines, a member of a white supremacist group currently incarcerated at the Utah State Prison, was expected to testify that he sold heroin to Willard just a couple of minutes before she was shot by Cowley and detective Kevin Salmon, according to court documents filed prior to the hearing. The defense had hoped he would testify about Willard's state of mind at the time.
But after reviewing the nine questions defense attorneys planned to ask, Dever determined it would not be relevant to the case and allowed Gines not to appear.
If the case goes to trial and if Cowley is convicted, he could be sentenced to up to 15 years in prison.
"It's a tragic situation. By no means are we OK with the fact someone got murdered here. I mean, the reality is someone died. That's a devastating situation," Jarvis said. "But at the end of the day, officer Cowley was put in a position where he was going to be struck by a vehicle and killed. And that's the reason he responded with this force."
