-By Mark Fierro
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In the pantheon of courthouse stories that will live on forever, there is a new entry: the case of the “Smoke Shop Shooter,” 24-year-old Raad Sunna, who was originally charged with open murder before he ultimately pleaded down to a gross misdemeanor in return for no time served. No trial. No felony record. No time. Zero. Nada.
One reason the case will live long beyond a mortal expiration date is the reaction of Dominic Gentile, the lead defense attorney in the case. Gentile has said that upon reflection, he is disappointed in the outcome.
“I know there are a lot of people applauding the result here, but I’m not one of them,” Gentile said. “It is a criminal defense lawyer’s horror to represent a person who is truly, factually innocent of what he is charged with, because it brings far more pressure. This was a classic example of how frustrating our criminal justice system is, because it is geared toward the negotiated settlement, the disposition, of cases.”
“Here you have a situation where a person should not have to carry on his record that he has been charged with a crime, and certainly should not have to carry that he has been convicted of a crime, because he did nothing illegal. He did nothing wrong. So, when you have somebody like that you are representing, it keeps you up at night — if you’re conscientious.”
Initially, Gentile’s contention of Sunna’s innocence seems to fly in the face of the fact pattern. The deceased person was 13 years old, unarmed, and had been shot in the side once and in the back six times.
The shooting generated sensational headlines from the evening of the incident. It began as a robbery attempt at a smoke shop in a southwest Las Vegas Valley strip mall, with three teenagers putting on layer upon layer of clothing to make themselves appear larger and more menacing. They donned shemagh-style masks, which many people associate with tactical military forces or terrorism.
All of the perpetrators’ preparation for the robbery was caught on surveillance video from a camera at a nearby store.
They burst in the door and rushed toward Sunna, the lone clerk in the family-owned smoke shop at the time. Video from the shop shows two of the attackers leaping behind the store’s counters and Sunna responding by drawing his pistol. Seconds later, one of the masked robbers, Fabriccio Patti, would be dead on the floor.
Thanks in part to the surveillance video footage, Gentile liked his position from the moment he took the case. “When I first saw the video, I never believed the police or the district attorney would file any charges,” Gentile said. “Raad’s background was pristine. I don’t think I could possibly create a fictional client who had more to offer to society than this kid. He was just the poster boy for good behavior.”
Sunna is literally an altar boy. When he sat down with police to answer their questions on the night of the shooting, he asked that his priest accompany him. That priest, Father John Nicholas, would have been a stellar witness had the state decided to proceed to trial. Even though he had an altar boy client with a background that would be any defense attorney’s dream, Gentile was not fully confident in his chances until he saw the results of a pair of focus groups he ordered. (Full disclosure: Fierro Communications, Inc., provided support for Gentile’s firm in preparation for the case, particularly in the area of conducting and analyzing focus groups and mock juries. As a direct result of their work on this case Fierro Communications and Gentile have partnered to launch a business based on focus groups.)
“You always have to stress test your own beliefs and your own point of view and your own evaluation of the evidence against what others may think of it,” Gentile said. “Lawyers are often far removed from the mindset of those who have nothing to do with the law. Sometimes their judgment is too constricted by the rules of law. I know what the jury instructions are, I know what the elements are of murder and all the other included offenses of murder. I know where the burden of proof rests on self-defense. I saw it as self-defense. But there were a couple of powerful factors that were not necessarily working in Raad’s favor. One was the person he shot was 13 years of age. Of course, Raad could not have known that. But at the end of the day you do not know how much sympathy the jury will have for the parents of a dead 13-year-old. Another factor was the dead man was not armed. Again, there was no way for Raad to know that, particularly with the way he ran at him. It turns out one of his cronies was armed with a butterfly knife that could cut your throat in no time. But the dead man was not armed.
“When those factors are in the mix, you have to worry about it. How is that going to impact emotionally the members of the jury? Regardless of what anyone says, the jury decides the case viscerally and then thinks of a rationale. That’s the nature of a group decision-making process. And that’s absolutely what juries do. Any trial lawyer or judge will tell you that.”
In studying the mock juries that made up the focus groups, Gentile’s resolve was strengthened when he observed that both groups independently decided that Sunna should be acquitted. “Both focus groups started out exactly the way I was afraid of,” Gentile said. “They started out by looking at a 13-year-old, unarmed, and looking for a reason to convict Raad Sunna. As they worked through it and started putting themselves in the place of Raad, the focus groups, without knowing what the other one was doing, both unanimously came to the conclusion that it was self-defense. The irony was the paths each one took to that conclusion were different from the other. When you see them reaching the same result from two different paths, it puts steel in your spine.”
On Feb. 1, 2018, a year and two months after the shooting, Sunna was sentenced to probation and community service after pleading guilty to a gross misdemeanor. He originally faced a charge of open murder that carried the possibility of a life sentence without parole.
The outcome followed tense negotiations between Gentile’s firm and the district attorney’s office that lasted until the final possible moments. The focus group research bolstered Gentile’s confidence during the negotiations.
“I strongly believe in focus groups. I’ve been doing them since the early ’80s,” Gentile said. “Focus groups don’t have to cost a lot of money. You can do a focus group without a lot of bells and whistles and benefit from it. What I really want to do is take the experience I’ve had with focus groups as well as juries, and we want to make it affordably available to more lawyers who handle jury-eligible litigation. I stopped counting, but I definitely have had more than 150 jury trials, every one of them as a private practice effort.
“I want to take that experience and share it with other lawyers. In the plaintiff personal injury arena, I think that cases are settled for too little because lawyers don’t want to spend the money for a focus group.
“And I’m absolutely certain that more cases should go to trial in the criminal arena. Too many cases are settled for way too great a penalty. This case proves that. It wasn’t finalized until the last minute. The next work day, we were supposed to start picking a jury at 9 a.m. And it was 4:59 p.m. the day before that the case was negotiated for what we had demanded. The district attorney’s office didn’t give in for less than a felony until that moment.”
Even though Sunna and his family were satisfied with the decision, Gentile still does not consider it a just result.
“A just result would have been the district attorney dismissing the charges outright,” Gentile said. “What the district attorney did was play the game to the hilt by giving us the Hobson’s choice of running the risk of a renegade jury, who would not see it as the focus groups did, as opposed to something that was not a felony and would most likely not result in him being incarcerated.
“What was I going to tell the client and his family, ‘Trust me, we can win this case?’ I told them what I would tell my own son: You can’t always get what you want, but you can get what you need. What Raad needed, more than anything else, was not to run the risk of life in prison.
“It was three masked robbers running through the front door of a store, totally surprising him. Anybody with a gun would have done what Raad did. Anyone who would dispute that, I would tell them to go click on the video and watch it. And watch the video from the vestibule next door where they were preparing for the robbery.” Gentile ranks the case among the most memorable in his long and illustrious career. “It is absolutely, without a doubt, in my top five cases,” Gentile said. “Although I don’t feel happy about the result, in some respects it may be the best work I’ve ever done.”
Mark Fierro began his career as a reporter/anchor at KLAS-TV, the CBS television station in Las Vegas. He worked at the U.S. House of Representatives in Washington, D.C. He served as communications consultant on IPO road shows on Wall Street. He provided litigation support for the Michael Jackson death trial. He is president of Fierro Communications, Inc., and author of several books including “Road Rage: The Senseless Murder of Tammy Meyers.” He has made numerous appearances on national TV news programs.