Yuba judge slated to set Cole re-trial date

by Tom Nadeau

A Yuba County judge is expected to set a date Wednesday to re-try accused killer Todd Allen Cole Jr.

After deliberating two days, jurors in the first trial last week told Superior Court Judge Kathleen O’Connor they could not reach a verdict and a mistrial was declared.

The jury’s forewoman told O’Connor the panel was deadlocked in a 10-2 split, according to published reports.

Cole is suspected of stabbing one Scott Malmstrom to death in July 2009. The murder took place in Malmstrom’s apartment located in the 1400 block of North Beale Road in East Linda.

Malmstrom was stabbed some 17 times. Investigators reported finding Cole’s finger- and foot-prints in the victim’s blood.

Jury verdict options included: finding Cole innocent; or guilty of voluntary manslaughter; or guilty of murder in the second degree.

Deputy District Attorney John Vacek led the prosecution team. Soon after the mistrial was declared, he told an Appeal-Democrat reporter he would seek a second trial.

Cole was represented by Deputy Public Defender Brian Davis. People v. Todd Allen Cole Jr., case #CRF-09-469.

The Cole “mistrial” news story by A-D's Rob Young elicited 165 comments from the public, a remarkably high number.

Opinions varied widely ...

Many came from people unfamiliar with trial procedures. Consider this one, for instance: [Online pen names are withheld to protect privacy]

How can a judge call a mistrial when there is no shenanigans, jury tampering, lawyer tricks? If the judge follows Penal code 1096 as they should, the Jury will be charged to go into the deliberation room, decide if the District Attorney has proved his allegations and if not, the defendant is not guilty. Thats the law! If the D.A. can not prove beyond a reasonable Doubt his allegations, the Defendant goes free!

These mistrials are nothing more than a system gone awry, a system that leans towards a defendant being Guilty until proved not guilty, taking as many as three or more trials to either make the defendant plead guilty, or coerce a jury finally into finding guilt where there is none.

The culprit is a Rule designed by the Judicial association? that tells the Judge, they have a Duty to instruct a jury to find unanimous verdicts for or against the defendant. The District Attorney does not have to bring any evidence to trial, just hope for a" hung jury".

A number of comments came from people with particular axes to grind, either for or against one side or the other. For example:

The jurors are not nitwits! They appear the only part of the criminal justice system that is working these days. They are demanding "proof beyond a reasonable doubt" as required by law! Not because [Yuba County District Attorney Pat] McGrath says so! The hung juries, the not guilty verdicts, appear to be the results of shoddy prosecution. Whoever said McGrath and Adams had nothing to do with the cases is a fool. Nothing happens in either office that isn't approved by our "electeds." The ridiculous plea bargains, the cases being tried (or retried) seem to have little to do with the bottom line of cost effective protection of the community.

And a few comments came from people who apparently have observed local cops and courts and the people who run them for some time – and gained a sense of humor from it. Like this commenter:

Looks like McGrath is the bad news bears of prosecution. If he decides to retry, the lingering issues of the Yuba County Sheriff's Dept. refusal to turn over the prints retrieved at the crime scene (which would have implicated 4 other suspects who were not tried in the Malstrom murder) to the State Dept. of Justice for analysis as requested by the state forensic investigator, and the failure to account for the stolen money which was the alleged genesis of the crime, will almost certainly be emphasized again planting the seed of reasonable doubt in another jury.

Look for McGrath to try to cut a deal, as retrials without substantial amounts of new credible evidence are even more likely to result in mistrial than the original trail. Perhaps, he'll give up the evidence to the state as they requested in hopes of improving the odds of a conviction, or even charging one of the other 4 suspects in Malstrom's murder.

Pat McGrath, and [neighboring Sutter County District Attorney] Carl Adams... The prosecuting Laurel and Hardy!

The last commenter’s contention that re-trials are chancy is debatable. Over the years I’ve covered cases in which the accused was repeatedly re-tried until a conviction was finally obtained.

One of the best known examples of repetitive re-trials was that of John Gotti Jr., who was tried, retried, and re-tried a couple times more before federal prosecutors finally decided yet another failure would be too embarrassing to risk.

As Britain’s Daily Mail newspaper reported on New York’s "Teflon Son:"

After prosecutors gave up trying to put an alleged Mafia boss behind bars there was only one stunt to pull.

John 'Junior' Gotti has announced he is to become a crime writer in the wake of four failed trials and five years of effort by the authorities to imprison him.

The self-declared former mobster then flaunted his freedom by holding a celebration dinner yesterday at a restaurant in New York's Long Island.

Gotti told reporters at the dinner that it might be 'better for everybody' if he left the state and that he was thinking of writing a true crime novel.
He served nine years in prison for racketeering but prosecutors again failed to convict him over allegations he ordered several people murdered.
Federal prosecutors announced on Wednesday that after a series of hung juries they would not pursue a fourth retrial.

Gotti, 45, insists he left organised crime a decade ago.

Gotti Jr.'s father, John Gotti, was known as "the Teflon Don" for the many times he was tried before the feds finally secured a conviction.

Notable Trials’ previous commitment to cover an unrelated case prevented it from covering Cole’s first trial. NT expects to cover Cole’s second go-‘round, if, in fact, one is scheduled.

Cole is expected back in court at 9 a.m. Wednesday to learn his future court dates, if any.

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