Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
A Marin County Superior Court judge dismissed an indictment last week against a Corte Madera physician in last year’s road rage shooting case.
James Simon, 71, was charged with attempted voluntary manslaughter for shooting at 70-year-old William Osenton of Tiburon on July 17.
“It hasn’t really sunk in yet,” Simon said after court on Friday. “I hope this becomes a footnote in my life and that I can do good for the rest of my life in both medicine and in helping friends and neighbors and inventions.”
Central Marin Police Authority officials said the two seniors were speeding up and braking recklessly on Paradise Drive in Corte Madera before the shooting.
Police said Simon drove his Smart car into the garage 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.
Simon then got a .357 caliber gun he kept in the garage and fired at Osenton, striking him twice in the abdomen, police said.
Simon’s attorney Charles Dresow said his client acted in self-defense and had a right to defend himself, his wife, and his home, during a preliminary hearing.
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.
Marin County Superior Court Judge Andrew Sweet in dismissing the indictment said the evidence prosecutors presented unfairly prejudged the grand jury against Simon.
Judge Sweet also indicated a change in Osenton’s testimony from the preliminary hearing to the grand jury proceedings was troubling.
Osenton remembered very little of the shooting in the preliminary hearing but testified in greater detail about the shooting during the later proceedings Sweet said Berberian should have mentioned.
The DA’s inclusion of Simon’s large stash of legally-owned firearms was another issue for the judge.
The evidence would not make into the record over objection during a trial, Sweet said.
Outside of court, Berberian read a prepared statement expressing his disappointment with Sweet’s decision he said removes the possibility of having the issue placed before the residents of Marin County.
“Dr. Simon in the minutes before the shooting had secured himself in a place of safety, had armed himself with a loaded firearm and had access to a telephone to obtain law enforcement assistance,” Berberian said. “Dr. Simon made a decision to leave that secured location and place himself physically in front of William Osenton.”
Osenton was outside of the residence, and there is no evidence indicating he had breached the gated area leading to the residence or the detached garage where Dr. Simon and his wife had secured themselves, Berberian said.
“Dr. Simon was aware and told the officers during his interview that William Osenton was unarmed and did not possess a firearm or any other form of a weapon,” he said.
Simon’s neighbor of more than three decades Bill Pratt said the final decision was the right one, but the entire prosecution was a miscarriage of justice.
“I think the decision is correct, but I think it is late coming. The decision could have come a month before, based on what the judge said,” Pratt said. “I don’t think it should have ever gone the grand jury route.”