ST. LOUIS — A St. Louis judge has tossed charges against two police officers accused of shooting a man outside a south St. Louis bar in 2018 saying prosecutors "willfully" withheld evidence from their attorneys and that surveillance footage supports the officers’ version of events.
Circuit Judge Elizabeth Hogan also stated in her Dec. 20, 2019, ruling that St. Louis Circuit Attorney Kim Gardner’s office has a “pattern” of failing to turn over evidence in many cases. For the first six months of 2019, Hogan stated that the court had entertained 331 motions filed by attorneys for failure to comply with the state’s discovery rules.
“The rules of criminal discovery are not mere etiquette and compliance is not discretionary,” Hogan wrote.
In the case against officers William Olsten and Joseph Schmitt, defense attorneys Brian Millikan and Jonathan Bruntrager said prosecutors withheld a transcript of a second grand jury proceeding, which led to the indictment of their clients. A previous grand jury had already declined to indict them.
The judge noted the omission of the transcript in her opinion.
“There are statements made to the grand jury regarding the incident that appear to be refuted by the videotape, again underlining the importance of the transcripts being turned over,” she wrote.
Prosecutors did not tell the second grand jury that they had struck a deal with the victim, Sean Demanuele, that would protect him from being charged with drug-related crimes for his conduct that night in exchange for his truthful testimony against the officers. Other off-duty officers who were there that night and witnessed the shooting did not testify during the second grand jury proceeding. And, the second grand jury was not shown the surveillance video, according to the transcript.
“This is not only a big problem for police officers, but for all defendants,” Millikan said.
And even though he’s representing the victim in the case, Sean Demanuele’s attorney Bryan Sanger agrees that city prosecutors mishandled the case and wants to see the Missouri Attorney General handle any future criminal proceedings should they occur.
Sanger is handling a pending civil lawsuit against the officers, which has been put on hold until the criminal case concludes. Now that it’s been thrown out, the status of the civil case is unclear. Sanger declined to comment on the civil matter.
“It’s an extreme measure and a very rare occurrence,” Sanger said of Hogan’s ruling.
Gardner refused to answer questions about the case, but issued a statement:
"We strongly disagree with the Circuit Court’s decision dismissing the serious charges against the two police officers. Despite this latest impediment temporarily blocking our pursuit of justice, we will be re-filing the charges in this case and continue to in our efforts to hold these two individuals accountable for their actions."
Millikan believes Gardner’s mishandling of the case is in line with her political agenda to be tough on crimes involving cops.
“It’s hard to believe political pressure didn’t play a factor in this, but why this specific case? I don’t know,” Millikan said.
The shooting happened in the early hours of April 27, 2018, in the parking lot of Bomber O’Brien’s Sports Bar & Grill at 4621 Beck Avenue. Olsten and Schmitt were off-duty at the time.
The officers claim that they saw Demanuele’s vehicle acting suspiciously in the parking lot as they were getting ready to leave.
They claimed its lights were off and it had switched parking spots, so they suspected there was a drug deal in progress. Demanuele testified that he was waiting for a friend to bring him marijuana.
Demanuele testified that Schmitt was interested in his girlfriend and targeted him, a claim Schmitt’s attorney disputes.
The video shows Olsten approached Demanuele’s van, but the view is partially blocked by a tree. Schmitt approached the passenger side of the van with his gun drawn initially. Olsten was unarmed. Schmitt holstered his weapon, and Demanuele, then 22, can be seen outside his van with a gun pointed at Schmitt and Olsten.
You can watch the security video here. Warning: The video is graphic.
The charging documents stated that Olsten opened a back door to Demanuele’s vehicle and jumped inside, so he grabbed his own gun and got out. Schmitt took up a tactical position behind a nearby vehicle.
Eventually, Olsten and Demanuele ended up on the driver’s side of the van once more, and a struggle ensued. Demanuele said his gun fired twice when Olsten slammed him to the ground. DeManuele told the grand jury that he ran and did not retrieve his gun.
Olsten was hit in the hand and upper arm. Demanuele’s gun had a flashlight mounted on it, and it can be seen on video falling to the ground. He then picked it up and started running away, and, at one point, it appeared to be pointed in Schmitt’s direction.
That’s when Schmitt opened fire, emptying his clip in the direction of Demanuele, firing 16 times and striking him at least six times in the arms and legs.
The department’s Force Investigation Unit applied for charges against Demanuele, but they were refused. The Circuit Attorney’s Office then conducted its own investigation, which led to two grand juries hearing the case.
Sanger said his client is still suffering from his injuries.
Millikan said his client struggles with injuries, too. His right thumb is shorter than it used to be and he has nerve damage in his arm.
Both officers were suspended without pay once they were indicted.
Schmitt has since been reinstated and has been put on desk duty.
Olsten left the police department Jan. 31, 2019. He is also the subject of a lawsuit filed by protesters accusing him and other officers of misconduct.