Defense claims cop-killing wasn't first-degree murder

Oakland Tribune, Apr 24, 2007 by Paul T. Rosynsky

OAKLAND -- Irving "Gotti" Ramirez feared another stint behind bars for violating his probation when San Leandro police Officer Nels "Dan" Niemi arrived to investigate a disturbing-the-peace complaint close to midnight almost two years ago.

Ramirez, who had spent the day drinking in celebration of his birthday, had recently been released from jail for violating his probation after a Pleasanton officer caught him with drugs in his pocket, jurors in his death penalty trial learned Monday morning.

So, when Niemi began to question Ramirez and his friends and took their identification cards, Ramirez, then 23, became nervous.

As Niemi turned around to check the identifications of two others hanging out at 14659 Doolittle Drive, Ramirez took out his 10 mm semi-automatic handgun and shot Niemi in the head, just behind his jaw.

"I saw Mr. Ramirez pull out a handgun, lean forward, and then shoot the officer in the head," said Frank Gonzales, brother of one of Ramirez's friends, who was at the scene. "I ran, I didn't want to be any part of this."

As Niemi fell to the ground, Ramirez fired six more shots ensuring the death of Niemi, a 42-year-old officer with three years of service.

"He shot the officer once in the head and then when Officer Niemi fell to the ground, he shot him six more times," Alameda County District Attorney Tom Orloff said in the opening statements of the trial. "He told (his girlfriend) the cop had his I.D. and would have (arrested) him."

"I didn't want to go down," Orloff said Ramirez told his girlfriend after the shooting.

Orloff, who last tried a case 12 years ago, took the jury through a series of events on July 25, 2005, that led to the fatal shooting. He also explained the mindset of Ramirez and how he feared going to jail because of his past troubles with the law. Using a soft monotone, Orloff explained Ramirez's troubled history with the law and his association with a group of friends who had a beef with others from the neighborhood.

That beef began, Orloff said, when one of Ramirez's friends was beat up in a fistfight.

That initial fight, several months before, led to Ramirez's friends asking for one of his guns on July 25 and it led to Ramirez going to their house to help ward off any trouble.

Ramirez's defense team told the jury it will not dispute any of the evidence that points to Ramirez killing Niemi.

In fact, during opening statements, one of Ramirez's attorneys, Michael Berger, admitted his client killed the police officer.

"It's not a mystery, it's not a whodunit," Berger said. "This killing was a stupid, tragic loss of one man's life."

Although Berger admitted his client's guilt, he said evidence does not prove it was first-degree murder, a charge that could take Ramirez to death row.

Instead, Berger argued, the shooting was the result of stupidity and being drunk. It was not a preconceived plot, he argued.

"Out of pure panic, God knows what is going on in his mind, he shoots this officer without planning," Berger said. "We're not going to make excuses. It was murder. All I am suggesting is that the evidence in this case cannot possibly support first-degree murder."