Judge Clears Way for Tyberg Retrial

A San Diego County Superior Court judge refused Thursday to dismiss the first-degree murder charge against Charles Tyberg, saying there already had been enough delay in bringing the former deputy sheriff’s son to retrial in the death of a San Diego police officer.

Defense attorneys for Tyberg, 20, sought the dismissal knowing that prosecutors would reindict the youth even if they were successful. But a defense victory would have put Tyberg just one prosecutorial misstep away from being cleared of the charge of killing Officer Kirk Johnson in February, 1983.

Tyberg’s conviction three years ago for first-degree murder was reversed in June by a state appellate court. The justices threw out his confession to the killing on grounds that homicide detectives tricked Tyberg, then 16, into admitting he shot Johnson during a joy ride in San Clemente Canyon.

“You have come before a practical man,” Superior Court Judge Raul Rosado said. “I think enough is enough. The delays are enough. Let’s get the case to trial so this will be decided on the merits and not on some legal fiction.”

Defense attorney Clancy Haynes said he would appeal Rosado’s decision. Tyberg, thinner and with his blond hair cropped shorter than during the first trial, remains in custody pending a new trial. He was sentenced to 27 years to life in prison after his conviction in 1983.

Haynes argued Thursday that besides Tyberg’s confession, no evidence linking the youth to Johnson’s killing was presented at his preliminary hearing three years ago. For that reason, Haynes said, the charge against Tyberg should be dismissed.

San Diego County prosecutors already had declared that they would renew the charge in the event of a dismissal. But California law says charges cannot be refiled more than once. So Haynes insisted it was nonetheless important to grant the dismissal.

“Unless the court assumes the people are going to put on a perfect case the next time around--which they didn’t do the first time--it denies Mr. Tyberg that first dismissal, and unless he gets that first dismissal, he may never get to that second dismissal,” Haynes said.

Deputy Dist. Atty. Paul Morley said Haynes was trying to set up a circumstance in which Tyberg could evade responsibility for the killing through a legal technicality.

Haynes hoped, he said, that the district attorney “will stub his toe and (Tyberg) will walk out of here a free man.” But Morley urged Rosado to reject that approach. “That’s not justice, Your Honor,” he said.

Haynes’ retort was swift. “Justice in this system means a fair trial and that all your procedural and substantive rights are enforced by the court,” he said.

Rosado indicated that he initially was inclined to side with the defense. But “common sense,” he said, suggested that it was abundantly clear that there was sufficient evidence for Tyberg to be tried again on the murder charge. Requiring another preliminary hearing, he said, “doesn’t serve any useful purpose.”

Also on Thursday, the district attorney’s office asked the court to order that Tyberg’s retrial be held in San Diego. The 1983 trial was moved to Orange County at the defense’s request because of extensive publicity regarding the case in San Diego.

Haynes said he would oppose the prosecution move.

“I don’t think there’s any way, just as there was no way three years ago, for Tyberg to get a fair trial” in San Diego, he said.

The U.S. Supreme Court left the case in the local court’s hands earlier this week, refusing to reinstate Tyberg’s conviction.

According to evidence presented in the first trial, Tyberg was wearing his father’s uniform shirt and badge and carrying his .357 magnum revolver when he and two friends jumped into his father’s patrol car for a joy ride one night in February, 1983.

They were parked in Marian Bear Park when Johnson, 26, pulled his police cruiser alongside. Tyberg fired six times--in panic, his lawyer insisted at the first trial. Five bullets struck the three-year police veteran, killing him.