Judge Craig Parsons has nearly two months to decide whether the defense attorney for Alberto Alvarez, 25, charged with first-degree murder, can argue that his client had a mental illness and post-traumatic stress disorder.
Defense attorney Eric Liberman said in a phone interview today he has had Alvarez examined by credible medical health care professionals, and that "based on events that have occurred in his life in East Palo Alto," they found Alvarez to have suffered from post-traumatic stress disorder.
"He's been shot at, he's been shot," Liberman said. "As a young boy at age 10 he was in the family home when bullets went flying through the door. It impacts a person."
Parsons will announce his decision Aug. 24, two days before jury selection is set to begin.
The district attorney's office is seeking the death penalty against Alvarez, who allegedly shot May four times -- including a fatal shot to the head -- on Jan. 7, 2006.
Alvarez had apparently been involved in a fight at an East Palo Alto restaurant on University Avenue around 4:30 p.m. that day, and May responded to the disturbance.
Alvarez ran and May chased him, Chief Deputy District Attorney Steve Wagstaffe said.
May was able to corner Alvarez a block and a half from the restaurant, but did not know Alvarez was carrying a gun in his pocket, Wagstaffe said.
Wagstaffe said Alvarez fired six shots, striking May four times. May managed to fire one shot at Alvarez, which hit him in the leg. May died at the scene.
Alvarez disappeared after the shooting, and an extensive police search was conducted. He was arrested at about 6 a.m. the next day while allegedly trying to sneak past police by hiding in the backseat of a friend's car, Wagstaffe said.
Alvarez has since pleaded not guilty.
Liberman said today the defense also plans to argue self-defense as a partial motive for the shooting.
He alleged that May had beaten Alvarez with his baton during the pursuit, "giving rise to the events that occurred shortly thereafter."
"We will certainly be arguing that when Officer May went after Mr. Alvarez -- we feel without any just cause -- and physically attacked Mr. Alvarez, that at that time he was operating outside the scope of his duties," Liberman said.
Liberman, however, also recognized the challenges of being a police officer.
"Police officers risk their lives each and every day," he said. "This entire situation is truly very tragic, certainly for Officer May's family and for Mr. Alvarez's family as well."
Liberman said Alvarez does not deserve the death penalty because he believes the shooting was not first-degree murder, the only type of conviction that can carry a death penalty sentence.
Alvarez has been in jail without bail since his arrest.