Scales of Justice

By Matthew Cabe
Staff Writer
Posted Feb. 23, 2016 at 7:09 AM

  • Prosecutor calls trio’s actions a ‘breach of public trust’

SAN BERNARDINO — Three San Bernardino County sheriff’s deputies seen on video beating Francis Pusok last April in a rural county area near Apple Valley were ordered to stand trial Monday.

Defense attorneys for Michael Phelps, Nick Downey and Charles Foster argued that felony charges were too severe during closing arguments, and Michael Schwartz — Downey’s attorney — spoke to the necessity the deputies felt with regard to apprehending Pusok after an hours-long pursuit.

Judge Katrina West, however, said she found sufficient cause to hold each defendant to answer to felony assault charges.

Phelps, 30, Downey, 33, and Foster, 34, expressed little outward emotion as prosecuting attorney Robert Bulloch worked his way through footage of the beating with Sgt. Daniel Hanke — the only witness called to the stand.

Bulloch homed in on Pusok’s actions during direct examination. Pusock placed his hands behind his back moments before Phelps and Downey began kicking him in the head and groin.

“I see use of force by Deputy Phelps and Deputy Downey,” Hanke said when Bulloch asked the sergeant what he saw in the video up to that point. “Deputy Downey kicked toward the head area, and Phelps was doing strikes toward the middle body area.”

When Bulloch turned his attention to Foster — who arrived after Phelps and Downey, but was also seen kicking Pusok — he focused on audio taken from Foster’s belt recorder.

The audio was not played Monday; however, Bulloch said Foster can be heard saying, “We’ll just tie him to the horse and we’ll drag him out,” and “How did that work out for you, dumb(a–)? You’re crying like a little (bit–) now.”

The comments were later deemed inadmissible and stricken from the record by West.

Meanwhile, the defense called the footage itself into question, and stated the video of the beating taken by an NBC 4 News helicopter failed to paint a full picture of the events or of the slope of the hill the deputies traversed as they approached Pusok.

“From the bottom of the hill you could not see to the top of the hill due to the incline,” Hanke testified. “At the top it was more of a flat surface. (There were) different angles depending on where you were at.”

The conclusion reached by the defense was that the deputies, Foster in particular, weren’t aware of what occurred at the site of the beating until they arrived and were forced to make split-second decisions in order to ensure Pusok’s arrest.

The defense also claimed there was no evidence that Pusok was injured during the altercation given that Pusok denied medical aid after his arrest and told his girlfriend, Jolene Bindner, “I was not kicked in the groin,” during a phone conversation two days after the incident.

“What are you talking about?” Pusok reportedly said when Bindner asked him about injuries to his groin.

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