DA drops enhancements against two charged with killing officer
Fugitive suspect was briefly arrested in 2021
OAKLAND >> The Alameda County District Attorney's office is dropping significant sentencing enhancements for two men accused of participating in the robbery and homicide of a retired Bay Area police officer who was working as a security guard, this news organization has learned.
Shadihia Mitchell and Herschel Hale, both of San Francisco, are in jail facing charges of murdering retired policeman Kevin Nishita, a KRON4 security guard, during a Nov. 27, 2021 robbery attempt of a news crew. A third man, Laron Gilbert, has been wanted on pending murder charges and remains a fugitive.
The dismissals appear to be in part motivated by a change in the prosecution's theory of responsibility. Mitchell was originally charged with personally killing Nishita, but that allegation is being dropped.
His attorney had argued that Gilbert — originally thought by prosecutors to be the driver — was actually the man who shot Nishita.
Now, Mitchell's defense team is accusing a disgraced Oakland police officer of botching the case.
All three men were originally charged with enhancements that would have made them eligible for life without parole, but that's going to change as well, due to the DA's decision to drop special circumstances allegations of murder during the commission of a robbery.
They still face 25 years to life on the first degree murder charge alone, not counting additional years if they're also convicted of lesser charges of robbery, assault with a firearm, and gun possession.
DA Pamela Price put out a statement about Nishita's case Monday night which fails to directly acknowledge that her office is dropping a significant piece of the case. Her statement says, “We believe there is evidence to prove guilt beyond a reasonable doubt to charge both defendants, Shadihia Mitchell and Hershel Hale, each with one count of first-degree murder, which carries with it 25 years to life sentences, as well as arming enhancements.”
“These are very serious charges, and they reflect my office's commitment to punishing those who come to Alameda County to inflict harm on people in our community,” Price said.
The murder charges were originally filed in March 2022, about 10 months before Price took office.
Chief Public Defender Brendon Woods, whose office represents Mitchell, said in a statement that the decision vindicates their efforts, spanning 18 months, to convince prosecutors that Mitchell was not the shooter.
The evidence clearly shows that someone else fired the fatal shots. Police arrested that man less than one month after this event, but failed to book him on the murder warrant in this case,” Woods said.
“He's now been on the run for two years. Investigators, including Oakland police Det. Phong Tran, then tried to cover up their incompetence by skewing the case to make it seem like our client was the shooter.”
Tran, a longtime Oakland homicide investigator, was charged by Price's office earlier this year with perjury and bribery for allegedly paying off a witness in another case, resulting in two overturned murder convictions. The charges remain pending, and Tran's attorney has called them politically motivated.
Court records show that Gilbert was arrested on Dec. 20 — about three months before he, Mitchell, and Hale would be charged — on suspicion of a parole violation. He denied involvement in Nishita's killing and was released the following day.
Since then, his whereabouts remain a mystery. Police have attempted to track him down but thus far he's eluded capture.
Mitchell's lawyer has indeed attempted to repeatedly prove that Gilbert, not Mitchell, was the shooter. Back in February Deputy District Attorney Emily Tienken wrote in a court filing that such arguments were “without merit.”
“The testimony established that the shooter was not wearing glasses, but the evidence showed that Laron Gilbert consistently wears glasses, suggesting that he was not the shooter and that that role was filled by someone else on that day,” Tienken wrote.
Price did not explain the rationale behind dropping the enhancements. During the 2022 election — which Price won by roughly 28,000 votes — she argued against charging people with crimes that carry the death penalty or life without parole.
Her office has already dropped special circumstances enhancements in several other murder cases, including an accused serial killer charged with murdering two women and a girl in two separate incidents.