Indictment dismissed in road rage shooting

A Marin County Superior Court judge Friday dismissed an indictment against a Corte Madera doctor in a road rage shooting case last year.

James Stephen Simon, 71, was initially charged with attempted voluntary manslaughter for shooting at 70-year-old William Osenton of Tiburon on July 17.

Both men were driving recklessly before the shooting, repeatedly braking and speeding up for at least a mile on Paradise Drive in Corte Madera, the Central Marin Police Authority said.

Simon drove into the garage of his home in the 5000 block of Paradise Drive, and Osenton tried to drive into the garage but the door closed on the hood of his vehicle, police said.

Simon then got a .357 caliber gun from his home and fired three shots at Osenton, striking him twice in the abdomen, police said.

During a preliminary hearing, Simon’s attorney Charles Dresow said his client acted in self-defense and had a right to defend himself, his wife and his home.

Marin County Superior Court Judge Kelly Simmons ruled in January that Simon should not be held to answer to attempted voluntary manslaughter and assault with a firearm.

Marin County District Attorney Ed Berberian disagreed with the ruling, claiming Simon’s conduct was unreasonable under the law and Simon should have stayed in his home and called police.

Berberian then obtained an indictment charging Simon with assault with a deadly weapon and negligent discharge of a firearm. Simons’ trial was scheduled for July 22, but Dresow filed a motion to dismiss the indictment.

After arguments Friday, Marin County Superior Court Judge Andrew Sweet dismissed the indictment.

Dresow was not immediately available for comment this afternoon, but his expressed opinion throughout the case was that his client believed he and his wife were in danger, that he acted in self-defense and was looking forward to being exonerated.

In a statement after the indictment was dismissed, Berberian said Judge Sweet ruled that exculpatory evidence (favorable to Simon) was not presented to the grand jury, and Sweet’s conclusion is not consistent with evidence presented to the grand jury.

Berberian said:

“Indeed, the grand jury was presented evidence that William Osenton remembered and recounted facts in different ways at different times and the full grand jury records supports this.”

Berberian also said Sweet ruled the grand jury should have heard “good character” evidence presented in letters by Simon’s friends and community members:

“In no case has it been held that this kind of positive reference letters is ‘exculpatory’ evidence sufficient to undo a grand jury indictment.”

Berberian also said Judge Sweet pointed out the fact that the grand jury was told Simon had access to legally possessed firearms and ammunition, but that information was irrelevant and would never be admissible in a court of law. Judge Sweet did not consider the fact that preliminary hearing judge Kelly Simmons did allow such evidence over defense objections, Berberian said.

Berberian said he was disappointed with Judge Sweet’s dismissal of the indictment:

“I stand by my decision to have prosecuted this case in the manner that I did. The decision was done irrespective of the social status of Dr. Simon and political ramifications associated with it.”

Berberian added:

“I came to the conclusion based on all the evidence – taking emotions out of the equation- that Dr. Simon’s reactions and his belief and need to use deadly force were not justified and were unreasonable ones. By the narrowest of margins his conduct did not result in the death of another.”

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