Saturday, August 7, 2010

Some, but not all, charges dismissed,
so Santana, Vasquez must stand trial

by Tom Nadeau

Visiting Judge John Darlington has granted some – but not all – of the objections Yuba-Sutter attorneys Jesse Santana and David Vasquez raised in a motion to dismiss charges they may have violated certain rules of law and ethics during disputed legal negotiations.

That means the two attorneys may go on trial in Yuba County Superior Court at an as yet undetermined date. If the defense files no more objections before Aug. 13, the rulings go into effect Aug. 27.

Santana’s attorney, Roberto Marquez said in a blistering written statement that he intends to file a writ of mandamus with the Third District Court of Appeals on the grounds the indictment was tainted because the judge who presided over the indicting grand jury had a demonstrable history of prejudice against Santana.

The counts, one by one ...

In his 12-page ruling on the complex case against the two lawyers, People v. Santana, Vasquez, #CRF-#08-825, Darlington dismissed counts two and three. These counts dealt with alleged bribery.

The main thrust of count 2 was that “S.A.” – a minor-aged female who figured in criminal charges brought against Joseph Griesa – had acted on the “understanding that she would not attend any criminal action involving Mr. Griesa’s alleged sexual assault of her.”

The “financial consideration” the two attorneys allegedly worked out to have “S.A.” not attend the Griesa hearings was said to be $100,000, but no money, in fact, ever changed hands.

Griesa, the former owner of Mitchell Towing Service, has since been convicted of misdemeanor sexual misconduct with 17-year-old female employee “S.A.” He was also convicted of certain pay-related tax violations. He is to be sentenced Aug. 27 for those convictions.

For the financial consideration offered to “S.A.” to be construed as a bribe, it would have to be shown that the bribe-giver’s “mental state” was to “induce a ‘corrupt’ act” by the receiver for it to be construed as a crime,” Darlington wrote.

“Therefore, the evidence had to demonstrate that the defendant believed he was improperly buying silence… [but the statute invoked] does not criminalize paying someone to not file a civil action or to refuse to talk to law enforcement. It only criminalizes using money to cause unlawful interference with the ‘judicial’ process,” Darlington wrote.

Grand jury got no guidance

The legal problem here, Darlington said, was that the “Grand Jury received no guidance” from the district attorney on this issue and such errors in instructing the jury were “prejudicial….”

Count 5 charged the attorneys with attempting to dissuade “S.A.” from bringing a complaint against Griesa and that this “act of dissuasion was committed for pecuniary gain.”

Darlington concluded that there was “no evidence (other than speculation)" that Santana had received any pecuniary gain and so dismissed that charge.

But there was “testimony and an exhibit that defendant Vasquez received $2,000 for his role in attempting to secure S.A.’s promises…,” Darlington wrote.

Since this money was paid by Griesa, there was “some evidence” that Vasquez received pecuniary gain acting upon Griesa’s request, Darlington wrote. He let that charge stand.

The good news ends there

Darlington elsewhere concluded there was probable cause to hold defendants to answer for count 4, which charged the defendants with intimidating a witness.

Hereafter Darlington’s legal reasoning becomes turgidly sophisticated.

“Contrary to counsels’ arguments, there is no requirement that ‘malice’ be proved.” The law is silent on that issue, Darlington wrote.

Moreover, unlike Count 5, the law as written here does not require that pecuniary gain be shown. Therefore, Darlington wrote, “Since there is no requirement of pecuniary gain as to [count 4], the court finds that there is sufficient evidence to hold both defendants to answer.”

There was also probable cause to hold the defendants to answer to count 1, since the law only requires that “some evidence of a corrupt agreement to do the prohibited act plus one overt act in furtherance of that agreement” be shown.

In other words, “While (the defendants) may establish a reasonable doubt at trial that they were not acting with corrupt or unlawful motives, the law only requires that there be some competent evidence of the elements of the crime…” for the charges to be brought.

Common law concept

One part of the defense’s motion to dismiss was based on a common law concept which Darlington decided was not met. Specifically, to secure a dismissal a defendant must demonstrate that:
1. The prosecutor made some offer of leniency to a witness
2. The witness testimony was “material’
3. The offer was at least, in part, in exchange for that testimony; and
4. The failure to disclose the offer so compromised the grand jury’s fact finding function as to justify dismissal….
Darlington opined that the questions the defense asked the witnesses it called – two prosecutors from the DA’s Office – failed to draw out enough evidence to do that.

In sum, Darlington dismissed county 2 against Vasquez and counts 2 and 3 against Santana.

However, “In all other respects … [all other] motions to dismiss the remaining Counts are denied,” Darlington ruled.

Defense reaction? The deck was stacked

Santana’s attorney, Roberto Marquez, was polite, but blunt, in his reaction to the rulings.

Darlington had granted the defense’s most important motions, Marquez noted, but other problems existed.

While the judge had clearly made a valiant effort to cope with the hundreds, even thousands of pages of legal argumentation and evidence presented in the case, he was hampered in reaching a decision.

As “a visiting judge, Judge Darlington, who I personally consider a gentleman, does not understand the level of animosity and acrimony the Yuba County District Attorney’s Office has towards Mr. Santana’s law firm for their constant successes in besting the District Attorney’s Office in trial,” Marquez said in a written response.

Marquez traced the alleged ill feelings to the internecine warfare that erupted in the courthouse when attorney Santana applied to the Governor’s Office to fill a vacancy on the Sutter County Superior Court bench.

A simple nose count and background check of current Yuba-Sutter judges shows a preponderance of previous prosecutors.

Santana was a defense attorney with 20 years experience. His only competitor for the judgeship was Susan Green, a prosecutor with 10 years experience.

Green’s ace-in-the-hole, however, was that she was backed by the local DA’s who wanted “one of their own” to be appointed, as Marquez put it.

It was then and continues to be the main defense allegation that the criminal charges brought against Santana were a political dodge local prosecutors cooked up to taint Santana’s personal and professional reputation and muscle him out of the judgeship.

What sets off warning bells for some

By way of proof, Marquez points to documents the defense unearthed through the pre-trial discovery process that he says show that Santana’s candidacy for the judgeship was a hot topic of discussion at an early meeting attended by both Green and Yuba County Superior Court Judge Julia Scrogin, another former prosecutor.

The theme of the discussion at that meeting, Marquez claims, was: “How do we stop Jesse Santana from becoming a judge?”

Scrogin was the presiding judge who “selected and presided over the grand jury that indicted Mr. Santana,” Marquez stated in his press release.

“Judge Scrogin should not have been selected or presided over the grand jury as she, without exception, refused to hear all of Mr. Santana’s cases because of her dislike of Mr. Santana and to avoid impropriety,” Marquez wrote.

By filing the planned writ with the 3rd DCA, Marquez wrote, he hoped to show that Scrogin should not have been selected to preside over the grand jury that indicted Santana and that there were other “irregularities” in the indictment.”


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