The evening before Jeff Burleson’s trial, he sat in the courtroom with his lawyer, a bailiff, and San Diego deputy district attorney Brock Arstill. As the three talked, Arstill raised the question of how the shotgun could be presented to the jury. According to Burleson, Arstill suddenly stood up and began a pantomime, spreading his legs and contorting his face, as he pretended to whip out a shotgun and aim it at the empty jury box.
In a final flourish, Burleson tells me, the prosecutor snarled that famous line from the movie Scarface: “Say hello to my little friend.”
“It wasn’t funny to me,” says Burleson. “I was facing 14 years in state prison. Do you know how much trouble you can get in with a shotgun?”
At about 8:00 p.m. on March 29, 2011, Burleson was in the back bathroom of his Encinitas home, bathing two of his children, ages three and five. A half hour later, his hands were cuffed behind his back and he was riding to jail in a sheriff’s car.
I learn Burleson’s story at a Fashion Valley restaurant. For the first few words of his order, his voice rings forth loud and strong, as if he’s not sure the waiter is paying attention. But then he trails off. I later conclude that this is a vocal tic, one I will notice in his voicemail greeting and messages: even while announcing his name, “Jeff” comes right out with force, followed by syllables said more softly.
Burleson’s skirmish with the law began when he heard a loud pounding on his front door. Not expecting anyone, he went on with the children’s bath, hoping that whoever was at the door would go away. The knocking stopped, then started up again. Burleson’s two dogs barked madly. He thought a friend might be out front. “At the time,” he says, “my kids liked to take long baths. That was a big part of their routine.” Burleson was in charge because, the previous day, his wife Erin, having begun to hemorrhage, had been taken to an emergency room; she’d given birth just three weeks earlier. Now she was nursing the newborn. Not wanting to leave the two older kids alone in water, Burleson continued to bathe them, even as the noise out front grew progressively louder.
Finally finished with their bath, he handed the kids over to his wife. He asked her to keep all of them in the back of the house. Burleson entered the living room and approached the front door. The commotion seemed to have lasted 15 minutes by now. “It was frightening, but not yet terrifying,” he says.
He looked through the peephole. “I didn’t know the guy, so I asked him through the door who he was. But he wouldn’t identify himself. And it seemed he wasn’t going to leave. He was a big guy, looked to be 300 pounds or thereabouts. I thought, He’s going to kick the door down. That was the physical demeanor he had.
“I tried to call 911, but my iPhone locked up. The service was terrible during that time. When the phone locked, you had to go through a recycle procedure that took several minutes. The day before, I’d had to do the same thing when I called 911 for my wife — it took three minutes to recycle the phone before I could call the ambulance. I didn’t have a landline. I figured, This guy [at the door] isn’t going to wait three minutes. Something’s going to happen now.”
Burleson returned to the back of the house and told his wife not to leave the room where she had the children. He then took his Remington 870 shotgun out of a cabinet above the closet in the master bedroom.
“I put five or six shells [he kept them separate from the gun] in my back pocket and went out to confront the guy. I asked him again who he was, and he still didn’t answer. So I racked the shotgun to try to scare him away. I racked it empty, but he didn’t know it was empty.”
Then Burleson took a step that would lead to a felony charge of “assault with a deadly weapon.” He opened the front door and brought the shotgun outside. The man was walking toward the sidewalk, intent, it seemed, on surveying the house. But at Burleson’s appearance, he started back toward the front door.
Later, it was revealed that the man’s name was William Gruytch, but at the time Burleson shouted, “‘I don’t know who you are, but you better leave or I’ll have you arrested for trespassing.’ The guy said, ‘You don’t understand who you’re dealing with. You can’t have me arrested.’ And he starts coming toward me. I told him not to get closer to me, but he kept coming.
“He said, ‘I want to see Erin Rostow’ [not her real maiden name]. I said I didn’t know who ‘he’ was.” Burleson was pretending that Gruytch had asked for an “Aaron” Rostow. “I was trying to protect my wife.”
The two men argued further about whether an arrest was possible. “How about disturbing the peace?” Burleson asked.
“Then the guy reached behind him for something, as though it were tucked between his back and his belt. Here I am, standing there with an empty gun in my hands, and suddenly feeling like I’m in a very bad spot. I’m trying to scare somebody, and [it looks like] this guy wants me to kill him. I asked myself, Did I do the right thing, coming out here with a weapon? I don’t know what would have happened had it been loaded. I’m afraid to guess.
“Of course, I was afraid he was pulling out his own gun. And he was so close he could have taken my gun out of my hands. This was now the most terrifying thing I’d ever been involved in. The thing that scared me the most was that he didn’t know the gun was unloaded, and he still didn’t care.”
But Gruytch was pulling out a summons he’d been assigned to deliver. Erin Rostow’s name was on the papers, which were an attempt to collect unpaid homeowners’ fees of approximately $1000.
Gruytch held the papers out for Burleson to take. “I reached out instinctively to get them,” Burleson says, “and he pulled them back, as though we’re playing tug-of-war. So I had to grab at them and jerk them out of his hand. Then he said, ‘Ah-ha. See, you pointed it at me. Now I’m calling the cops.’
“The way this thing played out, I swear he’d done it before. It was as though he’d taken a class in how to deal with a homeowner who comes to the door with a gun. This is how you get them in trouble, instead of you. If my gun had been pointed at him, as he said, it was inadvertent, and it happened at the moment that I was pulling the paperwork out of his hand. Because that threw me off balance a little.
“I was thinking that this guy was off his rocker. I still can’t believe he was willing to risk getting killed for a $39 service fee.
“Today I’m embarrassed. Nobody wants to admit going outside like that with a gun. But I was in a panic. This was right after my son was born, and my wife had gone to the emergency room.”
Burleson says he went back inside the house and watched from a window as Gruytch returned to his car. Gruytch seemed to dawdle for several minutes before driving away.
“I loaded the shotgun then, because I didn’t know if the guy was going to come around the side or the back. I thought, Sure, he’s just a process server, but the way he was acting, he might come back. And this time, it’s going to be loaded, and I’m going to be ready to go.
“But I put the safety on the shotgun and zipped it up in its case and put it back above the closet.
“I knew the sheriffs would be coming. And I honestly thought I’d be able to explain what happened. Then I saw them on both sides of the house, and I could tell they were deployed to make an arrest.”
A sheriff’s deputy came to the front door and asked Burleson if he’d pointed a shotgun at “this guy.” The deputy pointed down the street. Burleson told the officer, “‘I didn’t point it at him, but I came to the door with it.’ At that point, he put me in handcuffs.”
Burleson later learned that the sheriffs went into the house to make sure everyone was all right and to talk with his wife. They searched the back rooms, found the loaded shotgun, and took it with them when they left. “They also told my wife I had done a very bad thing. She did not give them permission to search the house. From my perspective, that was illegal.”
“I’m a salesman,” Burleson tells me, “and a good one.” At the time of his arrest, he was selling residential real estate in North County. But the market was slow and he was making little money; he had to borrow $4000 to be bailed out of jail. He also qualified for legal representation by a public defender.
In April 2011, John Patterson of the San Diego County Public Defenders Office began work on Burleson’s case. An investigator in Patterson’s office interviewed three people who, on the same night, had experiences with Gruytch similar to Burleson’s. They stated in their interviews that when Gruytch came to their doors, he’d been loud, demanding, and disrespectful.
“I found those supporting witnesses,” Burleson tells me. He also dug up information that indicated Gruytch had once owned a company called U.S. Bail Enforcement (Gruytch denied this at trial), conjuring up visions of the reality-TV show Dog the Bounty Hunter.
The discoveries were promising, but tension soon developed between Burleson and his attorney. The strain came to a head at the preliminary hearing. Burleson wanted to present an “affirmative defense,” in which he would maintain that he’d acted in self-defense. If the judge agreed, the charges might be dropped. To qualify for such a defense, Burleson would have to admit he’d threatened Gruytch with the shotgun.
On July 6, 2011, the day before the preliminary hearing, Patterson emailed his client: “Although we can present an affirmative defense tomorrow, I think the facts of your case may be better for a jury, and I do not want to tie you to any testimony now which could be used against you at a trial.”
Burleson didn’t buy it. During the hearing, when the judge asked if an affirmative defense was going to be made, Burleson spoke out. “I have a right to co-counsel,” he blurted. “And I’m going to be my own co-counsel.” He then indicated he wanted to pursue the affirmative defense.
“What are you doing?” Burleson says his attorney exclaimed. The judge told the pair to meet privately and get their act together. She’d already admonished Burleson not to butt in, as he’d tried to do by correcting the record earlier in the hearing; the judge said that he should allow his attorney to do it.
The Burleson team dropped the affirmative defense, and the judge decided a trial was warranted, scheduling it for early December. California law states: “It is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony.”
After several more months, Burleson decided to release Patterson and hire private defense attorney Gerald Smith. “What I liked about Gerald was that he’s a former cop,” says Burleson, who then borrowed more money to pay the bill.
The trial began on December 11, 2011, in Superior Court at Vista’s North County Regional Center. The charges against Burleson were “assault with a deadly weapon” and “brandishing a firearm in a threatening manner.”
According to a partial transcript of the trial, the first person to testify was 50-year-old William Gruytch, the complaining witness. As prosecutor Brock Arstill questioned him, Gruytch described a routine example of serving a summons. He told the prosecutor he’d arrived at Burleson’s residence at approximately 8:00 p.m. He knocked several times without anyone coming to the door. He heard dogs barking inside but described his knocking as reasonable, even demonstrating it for the jury, at Arstill’s request, by mildly striking his knuckles on a table in the courtroom.
After about five minutes, Gruytch testified, he was turning to leave when he heard the front door open. Reversing himself, he saw Burleson standing just outside the door, holding a shotgun. “He was holding it to his side,” Gruytch told the court. “I believe with both hands.”
Again, Arstill requested a demonstration. He produced the shotgun and, with the judge’s permission — and an assurance to the court that the weapon was unloaded — handed it to Gruytch. The witness did as he was told while Arstill interpreted.
“Okay. So I notice that you’re holding it in…kind of left hand in front, right hand toward the rear, and…it’s pointing forward.”
“At waist level?”
Gruytch testified further that he then walked back toward the front door. He was a process server and had legal papers from the homeowners’ association to deliver to an Erin Rostow. Burleson, according to Gruytch, denied several times that an Erin Rostow lived at the address, with each declaration becoming more “agitated.”
Arstill asked how far Gruytch walked toward Burleson.
“I was approximately two, three feet away from him when I stopped.”
“Was [the shotgun] pointing at the cars or pointing at the other side of the house?”
“It was pointing towards my direction.” Once more, Gruytch told the defendant he had papers to deliver. “At that point, that’s when he got very agitated, put the shotgun toward my face, and told me to ‘Get the — please excuse my language — f* off the property.’”
“How was it that he had the shotgun at that point?” Arstill asked.
“He…was pointing it at my face.”
“Approximately how far away?”
“I guess about six inches, maybe.”
Among others, the defense called a Michael Andreen to testify. Andreen was one of the three people Gruytch had served papers to on the same night he came to Burleson’s house. Andreen lived 100 yards from Burleson’s street in Encinitas, but the two didn’t meet until they later turned up at the same small-claims-court session to answer the homeowners’ association summonses: they sat next to each other while waiting for their cases to be called.
Burleson tells me that the judge wouldn’t allow him to take the place of his wife at that hearing about the homeowners’ fees. “But I went anyway, to see if anyone else had been served by Gruytch on the same evening we had.”
To the jury, Andreen’s testimony must have sounded like déjà vu. Sometime around or after 8:00 p.m. on the evening in question, he was in his kitchen, cleaning up after dinner. After hearing “a very loud booming at my front door,” Andreen said he hustled his wife, children, and pets into the back of the house before going out front to ask who was there. He went on to describe the knocking as “the loudest bang I ever heard in my life by a human being” and “a thunderous, frightening smashing on my door.” He thought the cops must have been outside and that they were “breaking down the door.”
Andreen eventually opened the door a crack, even though calling out from inside had yielded no identification. He described the man he’d seen as larger than 250 pounds. “Wide shoulders,” said Andreen. “Fu Manchu mustache. Very bad attitude.” Did Andreen go to the front door with a weapon? “No, but I wished I had one.”
Gruytch said he had papers to serve Andreen’s wife. “She’s asleep,” Andreen told the process server before taking the papers.
Next to testify was Burleson’s wife. She reinforced the picture of someone pounding on her front door the night Gruytch came to the house: it sounded like someone trying to “break down the door.” She admitted to defense attorney Gerald Smith that being on the stand made her nervous. Later, she told me that several months before the trial she’d become ridden with anxiety, and that after the trial, she sought treatment for depression.
The trial lasted three days. On December 13, 2011, the jury announced verdicts of not guilty of felony “assault with a deadly weapon,” but guilty of misdemeanor “brandishing a firearm in a threatening manner.”
By phone, I seek defense attorney Gerald Smith’s retrospective on the trial. “The reason why we went to trial in the first place,” he says, “was that the DA had not offered a whole lot of negotiation. They wanted Jeff to plead to a charge that would have had a serious impact on his life.”
What did Smith think most convinced the jury not to convict his client of assault with a deadly weapon? Since there were no third-party eyewitnesses to the alleged crime, the verdict had to be based largely on which version of events came off as most credible.
“Here was the major credibility issue,” Smith says. “Gruytch had already said he was very familiar with shotguns, that in fact he owned one. So I asked him, ‘What happened when, as you allege, Jeff pointed the shotgun at you?’ His reply was that he’d stepped forward. So I asked, ‘You’ve got a shotgun pointing at you and you step forward?’ When I was giving the closing argument and brought that up, that’s when most of the jury nodded their heads and rolled their eyes. It was a telltale sign.”
Burleson’s testimony in court emphasized self-defense. That, too, seemed to have affected the jury as it deliberated the felony assault charge. So, why did it not exonerate Burleson of “brandishing”?
“The problem with brandishing,” Smith says, “is that it doesn’t require a specific intent. It’s a catch-all charge.” Burleson’s intention to defend himself and his family carried less weight here than it had with the assault charge.
There was also the fact that, at the trial’s start, the judge did not specifically instruct the jury to view self-defense as a reasonable defense. “We had a lot of discussion on this, and I explained it to Jeff,” Smith says. “[Just as in the preliminary hearing] when the judge gives the self-defense instruction, it requires that the defendant admit that he did this. Unfortunately, that’s the way the statute reads. In other words, the defendant says, ‘I committed the act, but I have a justification for it.’ But Jeff said, ‘I didn’t do this.’ He was adamant in saying, ‘I never pointed the gun at this guy.’ Well, that takes him out of the self-defense case, and the judge couldn’t give the self-defense instruction.
“Now, you do have a right to protect your property. And we got those instructions in.” What Smith doesn’t mention is that, during the trial, prosecutor Brock Arstill got Burleson to concede that Gruytch had not damaged any property.
Still, Smith thinks “the jury got the decision wrong on brandishing. The shotgun in Jeff’s hands was pointing sideways and downward at a 45-degree angle. My argument was that Jeff didn’t brandish the gun in a threatening manner. He answered the door with the gun because a guy was threatening the hell out of him.”
It seems that it was hard for everyone to keep that self-defense argument out of the case.
“But that’s why there are appeals,” says Smith. “I’m not sure what an appellate attorney would argue, besides what they always do; namely, to say that the trial attorneys should have done this or that. You know, Monday-morning quarterbacking.”
Within a week of his trial, Burleson was planning on an appeal of the brandishing charge, based on self-defense. An attorney friend recommended former deputy district attorney Richard Huffman to conduct the appeal. At their first meeting, says Burleson, Huffman said that he agreed with the nature of the appeal and was confident it would be successful.
The charge to handle the appeal was $3500. Burleson gave Huffman $1000 to begin. This included purchasing the trial transcripts from the court. Burleson would pay the remainder in installments that were to be complete by the time the appellate court received the appeal.
On February 28, 2012, Burleson went to court again, this time for sentencing. He wasn’t worried: he claims that Huffman assured him the appeal would have kicked in by that time and that the judge would delay sentencing. Huffman was in court that day, too. He told Burleson the court had returned the opening brief, which seemed odd. Still, says Burleson, the attorney “didn’t expect any surprises.”
The judge sentenced Burleson to 120 days of work furlough. There was no mention of the appeal. After the hearing, Burleson says that Huffman told him, based on portions of the transcript he’d seen, that the defense attorney had fought like hell for his client and that there wasn’t much basis for an appeal. He should take the furlough and get on with his life.
On March 12, 2012, Burleson began spending his nights, for a charge of $42 each, at Correctional Alternatives Incorporated, a private company in Logan Heights that has a contract with the County of San Diego. He was allowed to leave each day for his job as a salesman of “practice management” software for attorneys. The software is largely intended to help them keep track of deadlines.
“How ironic,” Burleson says, “given what I soon discovered.” A little more than a month after entering custody, he called the court about his case. An official told him that not only was there no appeal on file, but that no one had ever ordered transcripts.
Due to overcrowding, Burleson was released from Correctional Alternatives 40 days early. Finishing the furlough finally gave him time for his family again. After some rest, he figured, he could still pursue the appeal. But he soon realized that his right to appeal had expired.
“So I decided to go after Huffman instead,” Burleson says. Last summer, he requested a copy of his file from Huffman. To date, it has not been forthcoming, although at one point an attorney for the defendant explained that Huffman was “assembling” it.
Acting on his own, Burleson has filed a complaint of “professional negligence” and “breach of contract” against Huffman, asking for $100,000 in costs and lost income. “It’s almost like you’ve got to be a self-absorbed, cocky, abrasive, and at times obnoxious son-of-bitch to survive. And I admit I’m all of that when I have to be.”
The court acknowledged receiving the complaint on February 28, 2013. Burleson also sent a complaint about Huffman to the California Bar Association.
Meanwhile, on May 8, Appellate Defenders, Inc., a not-for-profit service for indigent clients, agreed to restart an appeal for Burleson, who is currently unemployed. The first task was to convince the appellate court that, due to Huffman dragging his feet, the expiration of Burleson’s appeal rights ought to be waived. That effort proved successful, and the appeal is moving forward. Should Burleson win, he plans to sue the court to recover, at the very least, the money he paid Correctional Alternatives for the privilege of spending 80 nights with them.