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Attorney in cop-shooting throws case a curve

He says his client is guilty of all but attempted murder charge

By Laura McVicker
Published: May 29, 2010, 12:00am

After two weeks of trial, a defense attorney of one of two Portland men charged with trying to kill a Vancouver police sergeant told jurors Friday his client was guilty of all but one of the charges.

In closing arguments, Mike Foister, attorney for Jeffery S. Reed, said his client was responsible for the home-invasion robbery but not the subsequent shooting of Vancouver police Sgt. Jay Alie.

While his statement didn’t carry the weight of a guilty plea, it drew exasperation from Jeff Sowder, attorney for codefendant Daylan E. Berg.

Sowder asked Judge Robert Lewis for a mistrial and to subsequently split the men’s cases into separate trials.

“I now have a second prosecutor on this case,” Sowder said to the judge once the jury was dismissed. “Mr. Foister just became a mini-prosecutor.”

Lewis denied the motion, saying the jury could render different verdicts to each defendant based on their independent defenses.

After only deliberating an hour, Clark County jurors deciding the fate of Reed and Berg were sent home Friday evening before reaching a verdict.

The panel of eight men and four women received the case at 4:30 p.m. They were asked to return Tuesday morning to continue deliberations.

Reed, 27, and Berg, 23, are on trial for the April 15, 2009, robbery in Vancouver’s McLoughlin Heights and subsequent shooting of Alie, who followed and stopped their white Kia Spectra.

They are charged with first-degree burglary, robbery, kidnapping and intimidating a witness in connection to the home-invasion robbery on Delaware Lane.

“There’s evidence I can’t dispute” about the robbery, Foister said. But he said that Reed should be acquitted of first-degree attempted murder of Alie.

As they fled the home on Delaware Lane with marijuana plants in the backseat, Reed had no idea Berg planned to fire the .40-caliber pistol at Alie’s chest, Foister said.

“There’s no evidence of premeditation in Mr. Reed and no evidence he knew the passenger was going to shoot Mr. Alie,” he said.

Foister said there could have been other reasons for Reed’s sudden lunge forward just before the gunshot, which the prosecution contended was simultaneous with the shooting so the passenger could have a clear shot.

Alie had testified he had leaned into the car because he thought the driver had a weapon. Foister suggested Reed lunged forward because of Alie’s movements. Once the officer was shot, Reed drove off because “he could have panicked.”

Foister’s closing argument threw Sowder a curve ball. His defense throughout the trial has been the lack of eyewitness evidence connecting his client to both the robbery and shooting.

In his closing argument, Sowder had pointed to inconsistencies in the investigation and reminded jurors the only evidence against Berg was circumstantial.

Chief Criminal Deputy Prosecutor Denny Hunter said Berg, the alleged shooter, was found with the pistol believed used in the shooting the next day. Sowder suggested there was no scientific evidence the bullet that hit Alie matched that gun.

While two firearms experts had testified the bullet and gun matched, Sowder said their “opinion without scientific evidence is just an opinion.”

“This is not what Mr. Hunter said is a simple case,” he said. “What do they have connecting Berg?”

In his rebuttal, Hunter briefly touched on Sowder’s argument before zeroing in on Foister’s dispute over the premeditated intent to kill Alie.

“It just got a lot simpler,” he told jurors. “We know today Mr. Reed is certainly involved.”

But is Berg?

With the “compelling” circumstantial evidence, yes, Hunter said.

As for the issue of whether Berg and Reed formed a plan to shoot Alie, Hunter said Reed’s body language showed the intent. He avoided eye contact with the officer before making the sudden lurch forward.

“The furtive movement is what prompted Sgt. Alie to grab him,” he said. “It’s a chicken-and-egg thing, but it’s critically important.”

Before the shot, “(Reed’s) locked into looking forward,” Hunter said. Once it was fired, “he’s not trying to merely get out of the way.”

The actions of the men were both needed for a successful shooting, Hunter said.

“There’s no other reason for how this occurred.”

Laura McVicker: 360-735-4516 or laura.mcvicker@columbian.com.

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