Notable Trials

Schatz hearing: cameras banned;jury pick, trial start set for April 11

2011-04-01T09:19:00.000-07:00

by Tom Nadeau

OROVILLE -- Husband and wife Kevin P. and Elizabeth H. Schatz were in Butte County Superior Court this week to finish tidying up a few legal issues remaining before their joint murder trial starts April 11.

The Paradise couple are accused of killing one girl foster child they were caring for and seriously injuring a second girl last year.

Butte County sheriff’s deputies arrested the pair early last year. They were arrested Feb. 5, 2010 on charges of murder, torture and cruelty to a child. Both later pleaded innocent to all charges.

Kevin Schatz, 46, is represented in People v. K. Schatz, (CM#032009), by attorney Michael O. Harvey. Elizabeth Schatz, 42, is represented in People v. E. Schatz, (CM#032008) by attorney Kevin A. Sears.

Judge Kristen A. Lucena granted a joint defense motion Wednesday to deny a television media request to record that day’s hearing.

Sears had argued the couple’s appearance in orange jailhouse garb might prejudice potential jurors yet to be selected.

The defendants customarily wear street clothes when they appear before jurors.

According to testimony in earlier hearings, Lydia, 7, died and Zariah, 11, was seriously injured from beatings allegedly administered by the couple using by a quarter-inch plumbing line.

The prosecution, led by Butte County District Attorney Michael Ramsey, also alleges that the girls were beaten in “Biblical chastisements” in accordance with stern religious beliefs the accused couple allegedly hold.

Lucena Wednesday ordered the couple to return to courthouse Department 6 3:30 p.m. April 7 and 8:30 a.m. April 8 for further pre-trial hearings.

Jury selection is expected to start April 11 and the trial to last about three weeks, Ramsey said.

Various religious groups and their websites have taken considerable interest in this case. More than a half-dozen spectators who appeared to be present strictly for the Schatz hearing were observed in the courtroom.

All were quiet. One declined to comment on the day’s events.

with Sam Pierce

Simlick DA seeks death penalty,while defense attorney bows out

2011-03-22T09:22:00.000-07:00

by Tom Nadeau
with Sam Pierce

Accused killer --- Joseph Hayden Simlick was in Sutter County Superior last week where all bets were called off in his double-murder trial -- at least until May 13.

When Judge Chris Chandler mounted the bench he was clearly not in a chipper mood.

Looking down at a sheaf of legal papers, Chandler announced in a stern tone that some new issues that had come up in the oft-delayed Simlick matter. Specifically:

-- Prosecutor Jana McClung announced the Sutter County DA now wants to revise the state’s current charges against the 21-year-old Loomis man to include the death penalty.

-- Defense attorney Linda Parisi wanted to be vacant her role as Simlick’s privately retained attorney.

-- And, in view of those developments, a public defender would have to be found to take over Simlick’s case. That proved to be county legal contractor attorney Mark Van den Heuvel.

Arrested some seven months ago, Simlick has yet to have a preliminary hearing into the multiple felony charges against him

The skinny, pale and short-haired Simlick was arrested in July, 2010 on suspicion of two counts of murder in the deaths of husband and wife Jack and Susan “Suzie” Martin, both 46.

Firefighters responding to a garage fire at the Martin‘s Mulberry Street home reportedly found the two bodies. Details of the victims‘ disposition and the fire were withheld at the time by the Sutter County sheriff’s investigators.

Simlick was arrested soon after and was then arraigned on two counts of murder, burglary and false imprisonment charges stemming from a July 25 incident involving Kendall Martin, one of the Martin’s daughters.

Simlick had reportedly been breaking up with the girl.

He has pleaded not guilty to all charges

It was then 8:30 and a busy 9 a.m. regular court calender was closing in fast. There really wasn’t much time to properly address the pros and cons of the motions and Van den Heuvel had to be chased down.

Chandler wondered: could the matter be moved to 1:30 p.m.?

Apparently not. Parisi had a previously-scheduled matter set for 1:30 p.m. in Sacramento County Superior Court 45 miles away.

Chandler decided told the two attorneys he would deliver his rulings on the issues raised at 8:55 a.m. Sharp. Be there.

In the hallway McClung said the introduction of the new special circumstances allegation had nothing to do with Parisi’s announcement she was bailing out.

The decision to amend the charges was made the previous week, McClung said.

Later, Parisi said two factors caused her to ask to be released from her role as Simlick’s defender: the family was running low on money and the prosecution’s decision to invoke the death penalty would only things more expensive.

When they all returned at 8:55 a.m. Van den Heuvel also appeared.

Chandler got write down to brass taxes. He accepted Parisi’s withdrawal and noted the prosecution’s motion to call for the death penalty.

Van Den Heuvel’s accepted an appointment as public defender for Simlick and worked out a first court appearance in the matter, which Chandler set for 8:30 a.m. May 13.

That done, some spectators adjourned for breakfast at a nearby coffee shop. Speculation abounded.

One of the more interesting guesses was that the prosecution cranked it up to a death penalty case to complicate matters and make things more expensive, knowing the defendant’s family would be less likely to afford the more expensive process.

That would precipitate Parisi’s departure. Parisi is a sharp, well-respected defense attorney, well regarded around Sacramento courthouses.

Perhaps a local public defender would be easier to “work with.” Could that consideration have figured in the DA’s decision to seek the death penalty?

One can never know for sure.

Leary motion to quash debated;judge calls it 'crucial' to the case

2010-10-29T13:49:00.001-07:00

by Tom Nadeau

Pre-trial hearings are usually ho-hum, but what the courtroom jousting revealed Thursday in People v. Leary ranged from the dull to the disturbing.

Former sheriff’s Lieutenant Michael Leary faces six criminal counts arising from his stormy relationship with notary public Alyc Maselli and fraud and other allegations she brought in connection with a change of title for a $610,000 residence at 3301 Marina Cove Circle, Elk Grove.

Maselli claims she shared the property title and was paying her portion of the mortgage.

Moreover, in the course of their relationship, Maselli made domestic violence claims that included allegations of kidnapping and false imprisonment. No charges were filed after sheriff’s investigators concluded her claims were unfounded.

Leary, 50, counters Maselli’s claims of ownership by saying he only added her name as a secondary on the title because he mistakenly believed she could not live there unless he did so.

She was a tenant, he insisted, not an owner. Besides, she ceased paying her rent months before the mess erupted and the checks she claimed were for rent were in fact checks to herself for cash she kept.

And you ain’t heard the half of it yet …

The legalities of this case are further complicated by the several layers of personal rights and bureaucratic job protections that unionized cops enjoy, above and beyond those the few the public is generally allowed.

Against that backdrop, the Thursday hearing on the defense motion to quash opened with citations involving special procedural protections afforded to peace officers, including the Public Safety Officers Bill of Rights (POBR) and the so-called ”Lybarger Warning.”

Boiled down, the defense motion to quash was based on the assertion that department investigators did not come clean with Leary when they portrayed their probe into Maselli’s claims as merely an “administrative examination” rather than a criminal investigation.

Make that investigations, since it emerged from the questioning of witnesses by both Deputy District Attorney Michael Brazini and defense attorney William Portanova, that Leary was the subject of four investigations: two administrative and two criminal.

The first pair of administrative and criminal probes related to Maselli’s kidnapping claims; the second pair related to the allegations Maselli made in the property ownership dispute.

Portanova argued to Sacramento County Superior Court Judge Ben Davidian that failing to Lybarger Leary meant any statements he may have made in that interview should be declared inadmissible at trial.

Lybarger is a 2009 California Supreme Court ruling that while a public employee may be compelled “by threat of job discipline” to answer questions about misconduct so long as he or she is not forced “on pain of dismissal” to waive Fifth Amendment constitutional protections against any criminal use of the answers.

To justify including the statements at trial, Brazini put on two witnesses, Sergeant Todd Thiassen, working out of the Internal Affairs Bureau downtown and Detective Mark Freeman, who investigated real estate fraud cases from an outpost on Orange Grove Boulevard.

Thiassen described how, assisted by a couple of cops from the Special Investigations Bureau, he started looking into the Maselli’s complaints for possible administrative penalties, only to be told that a separate criminal investigation had been instituted.

Thiassen testified he then set aside his investigations pending the outcome of the criminal investigation. He admitted, however, that he kept tabbed on the progress of the criminal cases.

Meanwhile, Freeman separately undertook an investigation into Maselli’s real estate fraud allegations.

Portanova argued that these two different investigations – administrative and criminal – became inextricably wedded and, thus, inseparable. No, Brazini countered, the two were clearly separate matters.

Or – as Judge Davidian described it as he mulled the case before him – over the course of some six months the two ropes of the probes somehow became “braided together” – or not, depending on whether the source law agreed with the defense, or the prosecution.

The key event in the question of adequate warnings or not, came in a May 22, 2009 meeting with Freeman when Leary (who was universally described as cooperative) showed up for an interview with Freeman with a lawyer in tow.

A recording of that hour-and-a-half meeting was offered as evidence, with both sides urging Davidian to view it. Portanova and Brazini, both seemed to think that, if the judge would only view it he would decide their side was correct.

Besides criminal cases, Davidian also handles violation of probation (VOP) hearings that run into after hours. That means his court hours are slightly different from other judges with his day usually beginning at 10:30 a.m.

Davidian said he would take the recording home and view it sometime between Friday and when People v. Leary, #09F07685 resumes Monday.

No ruling is expected until after that.

Proponents from a McGeorge School of Law women’s issues group were in Davidian’s court Thursday on a separate action they would like the judge to take in the Leary matter.

They want Davidian to exclude from evidence information Leary wants to present, evidence that would allegedly show how loony and yet, at the same time, how vicious and vindictive Maselli could be.

Maselli has so far remained invisible in the proceedings, except as a party of reference.

Portanova suggested their issue would be best taken up next week. Davidian and the group dickered.

The judge agreed. Calling the issues raised by the motion to quash as "crucial," he suggested perhaps next week would be better for scheduling purposes, perhaps on Wednesday. He told the college group that his office call them with a firm time.

Leary was booked and arraigned in October 2009 on charges of grand theft fraud and forgery stemming from the transfer between himself and Maselli in 2006.

He has pleaded innocent to all charges. If convicted, he could be sentenced to five years four months in state prison and fined $75,000. He remains free on bail.

Leary, a former Elk Grove City Council member and community services director, was with the sheriff’s department for 27 years before losing his high-ranking post when he was arrested.

If he is found innocent of all charges, he said, he plans to reclaim his departmental position and collect all his back pay.

Judge to hear motions in Leary trial; victims rights group harbors opinions

2010-10-28T07:47:00.000-07:00

by Tom Nadeau

The prosecution and defense huddled in chambers with Sacramento Superior Court Judge Ben Davidian yesterday afternoon dickering over which of several motions would be considered in the matter of People v. Michael Leary..

Davidian emerged late in the day to announce that no public action would be taken on any of the proposed motions would be heard until today, Thursday.

Proceedings continue in Department 37 on the fifth floor of the courthouse at Eighth and H streets.

Davidian also advised representatives from a McGeorge School of Law-based victims’ rights group that has taken an interest in the Leary matter to get their arguments assembled and return today.

Judge will hear motions ...

He would then listen to their views on whether the defense should be allowed to present certain portions of alleged fraud victim Alyc Maselli personal mental and sexual history to the as-yet-to-be-chosen jury.

The three-member party from the McGeorge victims’ rights advocacy group was headed by school advisor Kathleen Benton, She was trailed by two certified law students, one male, one female.

Yes, indeed, the Leary tale gets more and more complicated with each passing court day.

On the procedural front, a relaxed Davidian – speaking off the bench and in street dress – outlined for the few in the gallery how he expected the next several trial days to go.

He will hear today Deputy District Attorney Michael Blazina’s and defense attorney William Portanova’s arguments on which of their trial motions he should consider.

The exact nature of the motions – said to be seven in number – was unclear. However, according to Leary, who was also left lingering in the gallery while the attorneys and judge met behind closed doors, said the ones he knew about revolved around whether the jury would hear certain allegations about Maselli’s personal history.

The prosecution and the victim’s rights group would rather the jury not learn about that aspect of the complicated dispute which gave rise to the criminal charges against Leary and a related civil lawsuit Leary filed against Maselli and others.

Nothing on the Leary matter is expected to be taken up on Friday and jury selection will not begin until Monday, Davidian said.

Leary has pleaded innocent to all six criminal fraud and related accusations lodged against him in People v. Leary, #09F07685.
His trial is expected to last about four or five days with the length of the following jury deliberations uncertain.

If convicted he could face a prison term of about five years and four months and fined up to $75,000, Blazina said.

On the other hand, if the jury finds him innocent of all charges, the 50-year-old Leary said he expects to seek his reinstatement as a lieutenant with the Sacramento Sheriff’s Department, a position he was forced to leave when the charges were brought.

He would also be entitled to back pay, if he were reinstated, Leary said.

Leary has filed a civil suit alleging his ex-girlfriend and the title company she worked for plus several of her co-workers claiming they defrauded him of thousands of dollars.

A separate investigation by the Fair Political Practices Commission of money-laundering and campaign fraud claims made against Leary also remain pending.

Siavii found guilty of killing Kalb; LWOP, plus 25 possible sentence

2010-10-26T16:45:00.000-07:00

by Tom Nadeau

A Sacramento jury found admitted drug trafficker Poe Blue Siavii guilty today of all charges arising from the May 5, 2008 execution-style slaying of Joshua Kalb.

Siavii could be sentenced to a prison term of life without parole, plus 25 years, Deputy District Attorney Chris Ore said.

The extra 25 years came from special circumstances of “lying in wait” enhanced by the use of a gun, Ore explained.

Siavii “showed no emotion” when the verdict was read, Ore said, adding: “Justice has been served.”

Sacramento County Superior Court Judge James L. Long set the sentencing time and date for 9 a.m. Nov. 22, 2010.

No good guys ...

In the course of the two-week trial of People v. Siavii, #08F07611 it emerged that Siavii was a big-time middleman in the transfer of bulk quantities of methamphetamine – sometimes as much as four pounds at a load – between Northern California producers and dealers in Honolulu, Hawaii.

Siavii would ship the drugs from Sacramento via UPS to Honolulu. Later, Steven Riddick, the “third man” and star prosecution in this drug drama, would fly to Hawaii to bring back the money in a canvas carry-all bag.

The sums involved reached as high as $380,000 in one transaction, witnesses testified. At one point in the trial, Siavii testified he had upwards of $900,000 in cash proceeds stashed in a Sacramento-area self-storage unit.

Riddick, who was granted immunity for his testimony against Siavii, explained the murder circumstances this way.

Apparently, money was the root of the evil in this case. Siavii owed $30,000 to Kalb but didn’t want to pay it.

So, in a series of cell phone calls, Siavii arranged to meet with Kalb at a deserted parking lot near Highway 99 and Elkhorn Boulevard close to the Sacramento airport.

Kalb was lured there under the impression they were to meet with a “mule” bringing the $30,000 payment from Hawaii.

The third man proved to be Riddick, who was driving what was actually a get-away car.

Siavii had pleaded innocent to all charges and testified in his own behalf. It was at the point that Riddick drove up that the two versions of the tale departed.

Riddick claimed that when he got out of his car, Siavii got out of the far with Kalb to move from the front passenger seat to the back seat behind Kalb, whereupon he pulled out a gun and shot Kalb in the back of the head twice.

Together, Siavii and Riddick cleaned up the scene (or so they thought) and left. Kalb’s body was discovered the next morning.

Riddick was tied to the crime via Kalb cell phone records and, when contacted by Sacramento County sheriff’s detectives, he rolled on Siavii, agreeing to act as an informant in exchange for leniency.

Investigators substantiated Siavii’s link to the crime through statements he made to Riddick in Samoan during a monitored phone call and also by saliva DNA evidence extracted from a cigarette butt and Coca-Cola can Siavii admitted dropping at the scene.

Siavii agreed the crime took place and that he was there. He just changed the scenario around so that it was Riddick who got into the back seat and offed Kalb – with a 10-second delay between shots: Bang! … Bang! again.

The jury asked for two read-backs during its deliberations, including virtually all Siavii’s lengthy testimony.

The guilty verdict, with L-WOP likely, indicated which version they believed.

Siavii jury asks for 2 read-backs

2010-10-25T15:35:00.000-07:00

by Tom Nadeau

About 3 p.m. Monday the jury in People v. Poe Blue Siavii, #08F07611, called for a read-back of two portions of the trial testimony.

The first request was for a read-back of the testimony given regarding the pretext call made by key prosecution witness Steven Riddick to the defendant.

Riddick was "the third man" in the drama revolving around the 2008 killing of drug dealer Joshua Kalb.

The second request was for the court reporter to read back the testimony of defendant Siavii.

It could take some time ...

The jury requested no specific portion of Siavii's testimony to be read back, the court attendant for Judge James L. Long said.

Since Siavvi was on the stand two days testifying on his own behalf, it is unknown how long the requested read-back could take. It is therefore unlikely a verdict will be reached today.

According to Riddick and Sacramento County sheriff's investigators the three men met at a late hour at the Park 'n' Ride lot at Elkhorn Boulevard and Highway 99, supposedly for a drug debt pay-off.

Riddick says Siavii instead shot and killed Kalb. Siavii says Riddick did it.

The prosecution granted Riddick immunity for his testimony.

The deliberations continue in Sacramento County Superior Court.

Santana, Vasquez goes federal

2010-10-25T06:08:00.001-07:00

by Tom Nadeau

Despite more than two years of filings and cross-filings, charges and counter-charges, motions and denials, court dates and canceled court dates, the issues involved in People v. Santana, Vasquez are now every place except at trial.

The visiting judge has continued People v Santana, Vasquez #08-825 to an indefinite time while 3rd Appellate District look at writ #C066008, filed by attorneys both for Jesse Santana and David Vasquez.

Those pleading documents were filed Sept. 13. Answers to those were subsequently filed by the state Attorney General’s Office which took over the case after the Yuba County District Attorney stepped aside.

No date certain has been set on when the 3DCA will rule in the matter, or for that matter, comment on it.

How it got there ...

Meanwhile, Yuba City attorney Mark Steidlmayer has taken the Santana, Vasquez cause to heart. He has asked the US Attorney’s Office in Sacramento to look into the propriety of the original grand jury indictment and Yuba-Sutter officials’ involvement in handling the case.

In a nutshell, Steidlmayer alleges that political motives led the Yuba County District Attorney Pat McGrath – conspiring with other officials – to trump up the allegations in order to secure the appointment of another to a judicial appointment Santana was competing for.

Steidlmayer raised the issues in a fat file of documents he presented to US Attorney Benjamin B. Wagner earlier this month.

Wagner was appointed USA for the Eastern District of California by President Barack Obama on November 6, 2009. He is said to be well experienced in so-called “white collar crime.”

The Sacramento office of the Eastern District serves 23 Northern California counties, including Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Trinity, Tehama, Yolo, and Yuba.

There are a total of 46 civil and criminal assistant USAs in Sacramento. They are supported an administrative staff of 53.

The Eastern District federal courthouse is located at 501 I St., Sacramento. Seven US District Judges and four US Magistrate Judges sit there.

Leary fraud trial goes today -- maybe, possibly, with luck

2010-10-25T04:50:00.000-07:00

by Tom Nadeau

UPDATE! Leary trial assignment was put over today until Wednesday for lack of a judge.

Sacramento County Superior Court Judge Geoffrey A. Goodman trailed the matter of People v. Michael Leary, for 8:45 a.m. Wednesday.

"The trial will go this week," prosecutor Michael Blazina predicted.

--

Trial is expected to start today in the multiple felonies matter of People v. Michael Leary, the ex-Sacramento County sheriff’s lieutenant and Elk Grove City Council member.

But we’ve reported that before in People v. Leary, #09F07685, haven’t we?

Leary is looking a six felony counts, the major ones being allegations of fraud relating to the transfer of ownership of a house in Elk Grove. He has pleaded innocent to all charges.

It gets long, complicated ...

If convicted, Leary’s maximum possible penalty would be four years and four months in state prison. The minimum possible penalty Leary faces would be a period of probation, Deputy District Attorney Mike Blazina said.

The 50-year-old Leary could also be fined up to $75,000.

Today, Leary goes to Sacramento County Superior Court Dept. 9 up on the second floor where a judge will hear a final pre-trial motion and, depending on what action is taken – if any – a courtroom and judge will be assigned and jury selection will start.

Leary has been in court at least a dozen times this year regarding these charges. He has also filed separate a civil lawsuit against the ex-girlfriend notary public and her co-workers and operators of an Elk Grove title company.

He claims they conspired to victimize and defraud him in the deal that led to his current criminal charges.

Meanwhile, the state Fair Political Practices Commission has also accused him of money-laundering and campaign fraud. That matter remains in progress

The ex-sweetheart-slash-title company case came to about a month ago when Leary filed a civil countersuit – Leary v. North American Title Company, et al, case #34-2010-00085705, claiming his former paramour Alyc Maselli, along with Abby Patneaud, Catherine Picton and others conspired through North American Title Company to defraud him of more than $25,000.

The FPPC allegations call for “a full investigation” into Leary’s allegedly illegal financial activities and, “if found guilty, because of his pattern and practice of unlawful behavior regarding his council seat, that he be punished to the extent of the law.”

The FPPC has asked the Sacramento court to force one of Leary’s business associates to present documents pertaining to Leary’s 2008 campaign expenditures.

The FPPC wants to see documents relating to a payment of $10,751.95 from his campaign committee account to the Circle Seven Wine & Liquor store for alcoholic beverages for the suspicious campaign event.

The FPPC complaint asserts, among other things, that money instead went to pay “back rent” for Maselli, a sum supposedly accumulated while the couple went through a temporary romantic split in their tumultuous, “on-again, off-again” relationship.

Leary allegedly wrote off another $7,000 as campaign expenses, but that money – some claim – actually went a mortgage broker.

Star closing arguments in Siavii;jury begins deliberating Monday

2010-10-22T12:26:00.000-07:00

by Tom Nadeau

The jury heard two persuasive closing arguments Thursday in People v. Poe Blue Siavii, #08F07611 and was expected to begin deliberating Monday whether the Samoan defendant was guilty of first degree murder under special circumstances.

If convicted, Siavii could be sentenced to life in prison for May 5, 2008 killing of Joshua Kalb, 27, at the Elkhorn Boulevard Park ‘n’ Ride lot off Highway 99.

The jury must decide which one is telling the truth: Siavii, an admitted mover and shaker in the Sacramento bulk drug trade, or Steven Riddick, Siavii’s trusted money “mule” in the exchange of pounds of methamphetamine for hundreds of thousands of dollars from dope distributors in Oahu, Hawaii.

Sacramento Deputy District Attorney Chris Ore presented ample evidence that Kalb had been killed, that money was the root of the that evil-doing and how, when and where the murder took place.

Defense attorney Kyle Knapp disputed little or nothing of those allegations. What he did dispute, however, was that his client Siavii was the shooter.

The case hinges on how one spins the mass of evidence presented and various witnesses’ statements, some of them made in the Samoan language, which, it turns out, is open to differing interpretations.

It's all in how you look at it ...

There were numerous calls between various cell phones used by Siavii, Kalb and Riddick in the hours leading up to the murder. Many of the calls were made from cars tooling around the Sacramento environs.

Telecommunications experts could read the phone bills and tell the approximate locations of where the calls were made, if the recipient answered and for how long the parties talked.

But as the defense brought out, it was not necessarily possible to know for sure, which person had actually made the call, only that the phone was used.

After all the arrangements were made and meeting set up, the prosecution argued that the subsequent events took place like this.

Siavii was said to have owed Kalb about $30,000 and had promised that a messenger was coming in from Hawaii to deliver the cash. A meeting had been set up for the Park ‘n’ lot at a late hour when the location would be empty.

Kalb picked up Siavii and drove to the lot where the two waited in the car for the cash man to arrive, having driven from the Sacramento airport.

While waiting, Siavii drank a can of Coca-Cola and smoked a Marlboro cigarette, dropping the empty can and the butt on the ground beside the car, both sides agreed.

According to Ore, when the expected car pulled in, Siavii got out of the front passenger seat and got into the back seat behind Kalb, while Riddick was to join Kalb in the front seat.

At that time, however, Siavii, now positioned behind the unsuspecting Kalb, pulled out his automatic pistol and shot Kalb twice in the back of the head.

Siavii and Riddick then wiped the death car down for fingerprints, collected the expended shell casings and left the scene.

Well, that’s how Riddick and the prosecution portray the events.

Siavii and Knapp describe it otherwise.

According to them, everything took place exactly as described by the prosecution, except when Riddick got out of the arriving vehicle Siavii remained in the front seat and Riddick got into the back seat behind Kalb and pulled out the weapon and discharged the two rounds.

The events thereafter resume following the prosecution’s interpretation, except for some small but important details, to wit, how the Coke can and ciggie butt got where they did and why they remained there until Sacramento Sheriff’s investigators arrived.

Showing the jury a prosecution photo on the projector screen of the grass divider beside the parking spot evidence markers standing over the can and the butt, Knapp noted that the objects would be exactly where front seat occupant Siavii would have dropped them, just outside the passenger window.

Moreover, if his client were the calculating killer the prosecution claimed, then why would he 1) purposely drop such evidence at the scene of the planned murder, and 2) after killing Kalb, clean up all the other evidence, but leave the Coke can and the butt behind?

No, the prosecution’s protected witness was the true killer and his motive was sheer ambition, Knapp told the jury. He was simply trying to move up the drug trade chain.

Ore countered this by portraying Riddick as a small fry member of the drug ring, a simple “mule.”

He further supported the prosecution’s assertion of Siavii’s guilt with evidence he said showed Siavii had, in fact, admitted killing Kalb in a Samoan language telephone call with Riddick that had been monitored and recorded by investigating detectives.

A portion of a transcription of that phone call translated by a prosecution interpreter was shown and quoted to the jury.

It went in part:

RIDDICK: The time you shot him was the phone on?
SIAVII: No.
[...]
RIDDICK: And you did not tell anybody what you did to Josh?”
SIAVII: No.

At that point, if Riddick had been the killer, any ordinary person would have butted in and said, “But I didn’t shoot him. You did,” Ore argued to the jury.

Knapp contended that the translation offered by the interpreter did not accurately convey the subtle nuances of the Samoan language.

For spectators observing these two crackerjack closing arguments given by two wily and experienced attorneys was, in its own way, as riveting as watching a courtroom movie drama perhaps starring Dustin Hoffman as Ore and Michael Caine as Knapp.

It probably was not as much fun for Siavii, but that is the name of the game.

When the arguments were over, Judge James L, Long, went over three last minute objections and motions raised by Knapp.

One of the options in the packet of written instructions that goes to the jury had to do with a charge of “aiding and abetting” leveled against Siavii.

How Ore had described the “aiding and abetting” option to the jury was improper, Knapp said, and he moved for a mistrial on that basis.

If the judge did not call a mistrial, Knapp said he would like to at least be allowed a surrebuttal* to respond to the prosecution’s allegedly improper statement.

Failing those two options, Knapp suggested that the verdict option of “aiding and abetting” be deleted entirely from the jury instructions.

Long denied all three motions.

The court day was nearing its end when Judge Long began reading the final instructions to the jury.

Before starting his reading, Long asked the jury to return after the reading and elect a foreman. The is now expected to begin deliberating Monday.

*According to Black’s Law Dictionary a surrebutter is “a plaintiff’s answer to a defendant’s rebutter.” In US criminal trials, the prosecution and defense each get a closing argument, but usually only the prosecution gets to rebut the defense closing. Occasionally, a judge can allow the defense a surrebuttal – something that is rarely permitted.

Telecom experts testify in Siavii trial

2010-10-21T06:04:00.000-07:00

by Tom Nadeau

Experts in telecommunications technology and the vagaries of telephone tower reception and transmission highlighted testimony Wednesday in the trial of Poe Blue Siavii, a Samoan defendant accused of killing fellow drug dealer.

Last word was that the jury will hear closing arguments in People v. Poe Blue Siavii, #08F07611 and then begin to deliberate their decision.

Perhaps the highlight of the day’s testimony came during the vetting of defense telecommunications expert Robert L. Beegle III of DeltaPhase Inc. in Rescue, Calif.

As the witness attempted to explain what he does in identifying quality aspects of phone signal transmissions, Deputy District Attorney Chris Ore interrupted him.

“Can you hear me now? Is that what you do,” Ore said, referring to the famous cell phone commercial.

“That’s me,” Beegle said, chuckling.

Telecom details followed ...

There followed a lengthy explication of how to read a phone bill and what information such documents include: who called who, if a connection was achieved, how long they talked, from which area tower conveyed the signal, etc., etc., etc.

Siavii is accused of shooting Joshua Kalb twice in the back of the head as the victim sat in his car at the Elkhorn Boulevard Park ‘n’ Ride lot off Highway 99 May 5, 2008.

Siavii and key prosecution witness Steven Riddick, a drug runner for Siavii, both admit being present when the 27-year-old Kalb was killed, but each claims the other did it.

Arrested Sept. 12, 2008, Siavii is charged with murder with the special circumstance of lying in wait. Siavii has pleaded innocent. If convicted, he faces a possible term of life in prison without parole.

Kalb was one intermediary dealer in a chain of dealers in an ever-changing ring linking methamphetamine manufacturers and Sacramento area middlemen with drug distributors in Honolulu, Hawaii.

Siavii and Riddick, both Samoans, were members of close-knit community of Samoan “cousins” who lived and worked in the Sacramento area.

The meth was packaged and shipped to Hawaii via common carriers such as United Parcel Service and messenger, or “runner,” Riddick, would later fly over to the island bring back the pay-off.

The amounts of these pay-offs varied considerably – as did the “facts” of the events and circumstances did as Siavii shifted his testimony under Ore’s pointed cross-examination.

Under questioning by Knapp, Siavii had previously admitted his traffic volume and single pay-offs sometimes ran as high as $380,000.

Siavii has admitted storing nearly $1 million in drug money profits in a storage unit.

Jury expected to get Siavii case today

2010-10-20T06:04:00.000-07:00

by Tom Nadeau

Defendant Poe Blue Siavii went through two days of soul-exposing testimony and grueling cross-examination before concluding his time on the stand in his Sacramento trial for special circumstances murder.

The jury is likely to hear the few remaining defense witnesses today and hear closing arguments from both sides before they begin to deliberate in the matter of People v. Siavii, #08F07611.

Ore hammers away ...

Deputy District Attorney Chris Ore hammered away at drug business Siavii admits operating and the events that led to the killing of Joshua Kalb, who was shot twice in the back of the head as he sat in his car at the Elkhorn Boulevard Park ‘n’ Ride lot off Highway 99 May 5, 2008.

Rebuttal witnesses today are likely to discuss the technical aspects of cell phones and many area transmission towers, and the traces they retained of Siavii’s many calls Siavii admitted making in the hours leading up to the murder.

In his direct examination by defense attorney Kyle Knapp, Siavii admitted being present at Kalb’s killing, but insists that his sometime drug-runner Steven Riddick was the shooter and that it all came as a complete surprise to Siavii, who portrayed himself as more or less an innocent bystander – or perhaps by-sitter in the car – when the rounds were fired.

It was only out of his fear of Riddick that he helped wipe away fingerprints from the murder care and collected the expended shell casings and tossed them out of his car somewhere on the freeway home after the killing.

Arrested Sept. 12, 2008, Siavii is accused of murder with the special circumstance of lying in wait. Siavii has pleaded innocent, but, if convicted, he faces a possible term of life in prison without parole.

Kalb, 27, was one intermediary dealer in a chain of dealers in an ever-changing ring linking methamphetamine manufacturers and Sacramento area middlemen with drug distributors in Honolulu, Hawaii.

Siavii and Riddick, both Samoans, were members of close-knit community of Samoan “cousins” who lived and worked in the Sacramento area.

The meth was packaged and shipped to Hawaii via common carriers such as United Parcel Service and messenger, or “runner,” Riddick, would later fly over to the island bring back the pay-off.

The amounts of these pay-offs varied considerably – as did the “facts” of the events and circumstances did as Siavii shifted his testimony under Ore’s pointed cross-examination.

Under questioning by Knapp, Siavii had previously admitted his traffic volume and single pay-offs sometimes ran as high as $380,000.

With Ore pressing for more details about a storage unit near his Sacramento-area home, Siavii revealed that he was getting some $30,000 a pound for the meth he supplied, and, what with his sales traffic booming, he had piled up more than $900,000 in the storage unit.

He had a substantial amount of ready cash tucked away around his home, too, Siavii said..

Riddick, the prosecution’s main witness testifying with immunity guaranteed, said earlier that he himself had brought back a duffle bag stuffed with $200,000 in cash.

Questioned why Riddick, rather than he, had killed Kalb, Siavii said Tuesday that Riddick was trying to move up in the business and was conducting some of his own business on the side.

Siavii portrayed Kalb’s killing as part of Riddick’s rise.

The jury was dismissed shortly before noon to allow Sacramento Superior Court Judge James L. Long and the attorneys to finalize the instructions the jurors would get after closing arguments.

With Siavii accused of being the murderer and him counter-claiming that it was really Riddick who was the killer, a principal instructions issue the lawyers wrangled over was the language used to describe Riddick and Siavii’s roles.

Use of the “aiding and abetting” language was the most debated .

If the jury is convinced by the defense arguments that Riddick was the killer, not Siavii, and Riddick has been given immunity, then the verdict and effective outcome of this unusual case could be curious indeed.

Siavii takes stand in exotic murder trial

2010-10-19T05:48:00.000-07:00

by Tom Nadeau

The defendant’s argument in the Sacramento County Superior Court matter of People v. Poe Blue Siavii, #08F07611, boils down to a classic “two-dude defense,”i.e., “It wasn’t me, it was the other dude who did it.”

Whether that floats with the jury of eight women and four men should soon be known, since closing arguments are expected to begin today in this seemingly simple, yet actually quite exotic murder trial involving handsome Samoan woman witnesses and disputed translations of monitored phone calls conducted in the Samoan language

Arrested Sept. 12, 2008, Siavii is accused of murder with the special circumstance of lying in wait. Siavii has pleaded innocent, but, if convicted, he faces a possible term of life in prison without parole.

Deputy District Attorney Chris Ore summed up the prosecution’s basic contention in his 23-page trial brief:

On May 5, 2008, Joshua Kalb was shot at point blank in the back of the head and killed while sitting in his car at a Park and Ride in north Sacramento, near the airport, Joshua Kalb was 27 years old and was a freely admitted high level drug deal. The murder was related to the drug dealing activity of Mr. Kalb. Defendant Siavii was ultimately identified as the slayer … through cell phone activity, eyewitness accounts, and DNA evidence.

Exotic traffic ...
This killing arose out of an illicit drug business operated by a small ring of Samoan methamphetamine dealers based in Sacramento but selling to a coterie of crank buyers in Oahu, Hawaii.

The meth was packaged and shipped to Hawaii via common commercial means and a messenger, Stephen Riddick, would fly over to the island separately to fetch back the money.

And we are not talking small change here.

Siavii took the stand in his own defense Monday. Under questioning by his own defense attorney, Kyle Knapp, Siavii admitted his traffic volume and single pay-offs sometimes ran as high as $380,000.

Riddick, the prosecution’s main witness, testified earlier that he himself had brought back a duffle bag stuffed with $200,000 in cash. He sometimes brought back other smaller amounts, he also testified.

Riddick testified that on the night in question he drove Siavii to a park-and-ride off Elkhorn Boulevard in Sacramento where they met Kalb.

Kalb had been led to believe they would then drive in Kalb’s vehicle to the Sacramento airport where they were to meet two others involved in the drug trafficking.

It is here that the conflicting testimonies start to get cloudy.

Riddick – a prosecution witness granted immunity for his testimony – claims that when they arrived ad the largely empty parking lot, Siavii got into the back of Kalb’s car and him into the front.

Siavii then pulled out a pistol and shot Kalb in the back of the neck and head, twice, with the rounds going off about 10 seconds apart.

Riddick said he was shocked and watched as Siavii gathered up the loose shell casings, and left the scene.

The defense statement of facts depicts essentially the same set of circumstances leading up to and execution the park-and-ride slaying, only it was Riddick who got into the back of Kalb’s car and Riddick who shot Kalb twice in the neck and head and Riddick who directed the crime scene clean-up

“Did you kill Josh Kalb,” Knapp asked Siavii on the witness stand.

“No I did not,” Siavii replied.

As the defense statement of facts portrays it:

On May 4, 2008 [date discrepancy not explained] Joshua Kalb was killed in his car at the Park-in-Ride off Elkhorn in Sacramento. Someone fired two close range shots from the backseat into his neck and head as he sat in the drivers seat. Until September of 2008 the investigation did not have much momentum, Detectives analysed cell phone data and on Sept. 12, 2008, found a phone number that was linked to the prosecution’s main witness, Stephen Riddick. Mr. Riddick was questioned and he quickly revealed how he observed the defendant shoot Mr. Kalb from the back seat of the car. He described what he saw and even made a pretext phone call in the Samoan language where there is a discussion of phones and the shooting of Mr. Kalb….

Joshua Kalb had many enemies, His name came up in prior narcotics trafficking case and the word on the street was the he was a snitch… there were numerous folks who harbored grudges against Mr. Kalb.

Mr. Siavii was friends with Kalb and had no motive to kill him.

Closing arguments are expected today before Judge James L. Long.

Judge lays down rules for Rampone trial

2010-10-18T21:09:00.000-07:00

by Tom Nadeau

Visiting Judge R.M. Smith laid out the ground rules today for the coming Yuba County Superior Court trial of Angelic Louise Rampone, who is charged with the first-degree murder in connection with the death of two men in Olivehurst in 2005.

Smith’s first order of business was to hear Deputy District Attorney Michael Byrne announce that he was dropping the special circumstances allegations.

That means Rampone, who has pleaded innocent to all charges, now faces two possible life prison terms without parole, if she is convicted.

Smith then instructed Byrne and defense attorney Roberto Marquez as to how he wanted to conduct the trial business.

Trial pace will be brisk ...

Jury selection on People v. Rampone, CRF-#05-699 is to begin Tuesday with a pool of some 130 juror-candidates getting questionnaires to fill out for the lawyers and the judge to review.

Smith said voir dire -- the “see and tell” session where the lawyers get to quiz juror-candidates about their opinions and beliefs – should start Thursday.

He expects to ultimately empanel 12 jurors and two alternates, Smith said.

A typical trial day will begin at 9 a.m. and break for lunch at noon, Smith told the lawyers. In between there will be two 10-minute breaks at the top of the hour, one at 10 a.m. and another at 11.

The afternoon session is to run from 1 to 3:30 p.m. with one 10minute rest stop midway through.

That is a relatively Spartan regime compared to a typical jury day in Yuba County where the day may begin at 9 or 9:30 a.m. with a 15-20 minute break about 10 a.m. Lunch runs from noon to 1:30 p.m. followed by an afternoon session highlighted by one visit to the relief break mid-afternoon.

Juries usually recess for the day around 4:30 p.m.

Rampone is one defendant in a complicated murder proceeding that all started with the slayings of Christopher Hance and Scott Davis at an Olivehurst medical marijuana farm.

Investigators say several people went to the fenced property where Hance had legal permission to grow the marijuana for his father who used the natural drug to ease his severe physical pain. The visitors’ plan was to steal marijuana.

But when Hance and Davis accosted the intruders, suspect Michael Huggins shot them dead.

Also charged in connection with this fatal incident is Dustin Sparks, who last week entered a guilty plea to reduced charges of voluntary manslaughter. He awaits sentencing in January, 2011.

As the Sparks defense recounted the incident, when the group arrived, only Huggins entered the property. Sparks remained outside having decided to bail out of the situation. Driver Rampone remained in the vehicle.

Both Sparks and Rampone fled the scene when the shooting started, according to earlier statements.

Killer Huggins was arrested and tried for special circumstances first-degree murder, but a Yuba County jury found him guilty only of voluntary manslaughter.

Meanwhile, as Rampone’s trial proceeds, a separate writ of certiorari filed by Sparks is being considered by the US Supreme Court.

If the High Court takes it on as an issue, Sparks plea deal calls for his guilty plea to be rescinded and he goes back to square one and could go to trial on his original murder one counts.

Sam Pierce contributed to this story.

Sparks cops a plea; Rampone goes to trial

2010-10-17T08:59:00.000-07:00

by Tom Nadeau

Dustin William Sparks entered a surprise plea of guilty to two lesser counts of voluntary manslaughter in Yuba County Superior Court Friday in exchange for the prosecution dropping two first degree murder charges.

Under the terms of the negotiated plea in People v. Sparks the defendant faces up to 13 years in state prison. Visiting Judge R.M. Smith postponed Sparks sentencing until Jan. 3, 2011.

This bizarre move by Sparks came even as the defense awaited word from the US Supreme Court whether it will consider his writ of certiorari arguing he was wrongfully charged with first degree after the actual shooter in the 2005 double murder was convicted of two counts of voluntary manslaughter and was serving a term in state prison.

And it gets even more bizarre …

Sparks was facing charges of special circumstances first-degree murders of Christopher Hance and Scott Davis at an Olivehurst medical marijuana farm.

Another defendant, Angelic Louise Rampone is charged with the same crimes from the same incident. Her trial is set to start this week, with attorney Roberto Marquez defending.

As investigators paint the death scene, several people went to the fenced property where Hance had legal permission to grow the marijuana for his father who used the natural drug to ease his severe physical pain. The visitors’ intent was to steal marijuana.

However, when Hance and Davis accosted the intruders, suspect Michael Huggins, shot them dead.

As the Sparks defense recounts the incident, when the group arrived, only Huggins entered the property. Sparks remained outside having decided to bail out of the situation. Driver Rampone remained in the vehicle.

Both Sparks and Rampone fled the scene when the shooting started, according to earlier statements.

Killer Huggins was arrested and tried for special circumstances first-degree murder, but a Yuba County jury found him guilty only of voluntary manslaughter.

Jurors said they believed Huggins did not intend to rob or burglarize when he arrived at 3 a.m., armed with a loaded .45 caliber handgun. Huggins was still in prison at last report.

Meanwhile, the prosecution of Sparks and Rampone on special circumstances first-degree murder charges continued, with the defense arguing the two couldn’t be, because the actual killer had only been convicted of a much lesser crime. The original judge ruled Sparks and Rampone could not be.

Deputy District Attorney Michael A. Byrne then appealed Curry’s decision to California’s 3rd District Court of Appeal, and won.

Sparks defense attorney Justin Scott appealed that decision to the state Supreme Court, and lost again. Scott then decided to go for broke and appealed to the US Supreme Court.

Rampone and her attorney, Marquez, opted instead to abide by the state Supreme Court ruling and go to trial.

Sparks' sudden reversal of his plea now throws yet another twist in this strange legal mess.

The first question from trial watchers who have been following the case was, “Why?”

Defense sources later said Sparks was advised to sit tight, but maneuvering by Byrne had rattled the defendant’s nerve.

Apparently, as Notable Trials can best piece it together, a key prosecution witness (said to be Lavelle Hill), now refuses to testify, which would weaken the state's case.

In three days of backroom dealing, prosecutor took a hard stance.

Having previously rejected a defense offer to plead out, if the charges were reduced to voluntary manslaughter and the top prison sentence be held at 11 years, the prosecution now offered to cut the first-degree murder charges to voluntary manslaughter with 13 years minimum term – but with a tough guy stance this was the last and only time any such offer would be made. Period.

Sparks was faced with a dicey choice: Take Byrne’s offer or gamble that the USSC would take accept his writ and rule in his favor – with the uncertain chance it might not accept the writ and, if it did, still rule against him and sent it back down to the local court for prosecution.

In that case he would be looking at the possibility he would be facing a jury that could find him guilty and looking at a sentence of life in prison -- not 13 years.

Sparks has been in jail for some five years awaiting the courts to decide whether or not his argument that collateral estoppel applied to his case, or not. Collateral estoppel essentially says he could not be tried for first degree murder when someone else had already been found guilty of a lesser charge for the same crime.

Despite defense advice to sit tight, Sparks decided to take Byrne’s offer – a move that raises even more questions on different fronts.

Sparks entered the “vol-man” pleas with the proviso that, if the US Supreme Court should take on his writ of certiorari and rule in his favor, the decision Friday would be vacated and Sparks would be back where he started.

However, Sparks' plea move now raises the questions that, if the US Supreme Court Justices should here about his plea deal, would it toss out his writ figuring it was now made moot?

That was a possibility, defense attorney Scott said.

That would be a shame, since a High Court ruling in Sparks favor could have a salubrious effect on many other cases nationwide.

This tentative outcome poses some disadvantages for Rampone, whose case goes to trial this week. With Sparks’ decision in his pocket, Byrne can now place the prosecution’s full weight entirely on Rampone.

This happenstance driver with no significant prior criminal record before the ugly Olivehurst incident is looking at some serious time in state prison if convicted.

Meanwhile, in another complicating wrinkle, some experienced court watchers are wondering aloud why the issue of Penal Code section 1192.7 (c) was not raised with Judge Smith.

That section states:

1192.7(a) (1) It is the intent of the Legislature that district attorneys prosecute violent sex crimes under statutes that provide sentencing under a "one strike," "three strikes" or habitual sex offender statute instead of engaging in plea bargaining over those offenses.
(2) Plea bargaining in any case in which the indictment or information charges any serious felony, any felony in which it is alleged that a firearm was personally used by the defendant, or any offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination
thereof, is prohibited, unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.
(3) If the indictment or information charges the defendant with a violent sex crime, as listed in subdivision (c) of Section 667.61, that could be prosecuted under Sections 269, 288.7, subdivisions (b)through (i) of Section 667, Section 667.61, or 667.71, plea bargaining is prohibited unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a substantial change in sentence. At the time of presenting the agreement to the court, the district attorney shall state on the record why a sentence under one of those sections was not sought.
(b) As used in this section "plea bargaining" means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.
(c) As used in this section, "serious felony" means any of the following:
(1) Murder or voluntary manslaughter….

Why, Notable Trials source Sam Pierce wondered, was the Sparks plea deal considered proper, considering that legal provision?

In any event, Rampone goes on trial starting tomorrow – provided no more out-of-the-blue legal twists suddenly occur.

Hume record targeted by opponents;flyer hand-outs may lack proper ID

2010-10-16T08:55:00.000-07:00

by Tom Nadeau

As the Nov. 2 election nears inflammatory flyers are starting to appear. Two materialized out of the blue at last night's Elk Grove candidate forum. Both targeted incumbent candidate Patrick Andrew Hume.

Hume declined to comment on both flyers.

One flyer – known in the trade as “a hit piece" – was headlined: “Take a Look at the Public Record.” It blared five allegations in bold type.

'Scofflaw' claimed --

The flyer accused Hume of being a “tax scofflaw.” It claimed he was listed with the Sacramento County Tax Collector as being delinquent in paying property taxes on land parcel #125-0293-016-000.

Phone calls and Internet searches of the tax collector’s website http://www.eproptax.county.net/ confirmed that there was a tax bill #10350704 which showed the owner of that parcel was in arrears, owing an unpaid balance of $784.30 as of Oct. 14.

To be fair, however, tax collector entry did not specifically identify Hume as the “owner” of that parcel. In fact, no ownership names were provided.

The “Take a Look” flyer went on to claim that unnamed members of the Elk Grove City Council had recommended the county grand jury investigate Hume. It cited a Sacramento Bee story published Oct. 14 as the source of that information.

Attempts to confirm that alleged Bee news story were unsuccessful.

The same flyer further alleged that a complaint – File #10/758 – had been filed with the state Fair Political Practices Commission on Sept. 9 against Hume.

The flyer also leveled two other rather nebulous allegations at Hume.

The flyer also lacked any political campaign identification information to show who paid for or prepared it, as required by law.

A second flyer entitled “Character Counts” also attacked Hume personally.

Subtitled “Those that make our laws should be held to a higher standard,’ the flyer states, “Elk Grove City Councilman Pat Hume’s driving record is inexcusable.”

The flyer includes a web address http://www.elkgrovemadd.org/. That site calls up an image showing the Sacramento County Superior Court record of Patrick Andrew Hume being charged May 19, 1999 for misdemeanor drunk driving and a related infraction.

Hume was held in custody for 48 hours, case file #99TO2535 indicated.

According to that court report, Hume's blood-alcohol level was .16 at the time of the traffic stop.

Hume was sentenced Dec. 2, 1999 in that case and placed on three years probation.

That flyer cited www.facebook.com/MADD.Official as a source of information regarding that arrest and sentencing of Hume.

That MADD site is a huge. Despite some searching, no entry could be found citing Hume, nor was there any indication of a local MADD chapter connection.

The “Higher Standard” flyer went on to accuse Hume of trying to avoid disclosure of his arrest record and the embarrassment it would likely follow.

This campaign hit piece also lacked any verifiable political campaign identification information identifying its sponsors.

Again, contacted by phone, Hume declined to comment on the two flyers.

Witness glitch delays Leary trial again

2010-10-14T06:08:00.001-07:00

by Tom Nadeau

The trial of former Elk Grove City Council member Michael Leary on fraud charges was postponed Wednesday until Oct. 25.

Sacramento County Superior court Judge Gary Ransom delayed the trial start at the request of Deputy District Attorney Michael Blazina.

Blazina said a key prosecution witness was unavailable until then.

Two counts added ...

The prosecution also asked Ransom to add two counts to the four Leary is already charged with. The two were one count of attempted grand theft and one count of actual grand theft. Ransom added them.

The two counts were not additional counts defense attorney William Portanova said after the five-minute pre-trial hearing. The were just different ways of phrasing the counts Leary has already pleaded innocent to. That way the jury will have additional options to consider when they deliberate, he explained.

Leary’s trial will now begin 8:45 a.m. Oct. 25 when an assignment judge in Department 9 will determine which trial judge gets People v. Leary, #09F07685.

It may take a day or two to pick a jury and the trial itself could last three to four days, Portanova estimated.

Leary now faces a total of six felony counts arising from a real estate dispute with his former live-in girlfriend, Alyc Maselli.

Maselli and the district attorney allege that Leary bilked her out of her share of a $610,000 home at 3301 Marina Cove Circle, Elk Grove.

Leary has pleaded innocent to all charges. If convicted, he could face several years in state prison and a fine of up to $75,000. In the meantime, he remains free on bail.

Leary has separately filed a civil counter suit claiming Maselli and ring of women notary executives have joined together to defraud him through an improper title transfer.

He filed the suit in propria persona, that is to say, on his own lonesome, rather that through an attorney.

Portanova skirted comment on Leary’s civil suit, saying his law office was not involved in the matter. It is unclear what, if any, impact this civil suit might have on Leary’s criminal proceedings.

Portanova also said Wednesday that there were no new developments in the allegations that arose about a month ago in which the Fair Political Practices Commission announced it was looking into matters relating to Leary.

Leary’s civil suit – Leary v. North American Title Company, et al, #34-2010-00085705, claims that Maselli along with Abby Patneaud, Catherine Picton and “Does 1 through 15” conspired through North American Title Company to defraud him of an unspecified amount in excess of $25,000.

Cecil rules on Hume-Conley 'chaos'

2010-10-09T06:07:00.000-07:00

by Tom Nadeau

In a sympathetic, but bluntly-worded order, Sacramento County Superior Court Judge Thomas Cecil ruled Oct. 5 that Constance “Connie” Conley stay 100 feet away from her estranged boyfriend, Elk Grove City Council Member Patrick Hume, for one year.

However, despite Hume being the prevailing party in this highly-publicized romantic quarrel, Cecil declined to make Conley pay Hume’s legal fees, because, as Cecil put it, Hume “brought part of this chaos upon himself.”

Cecil based his decision in Hume v. Conley, #06CP01317 on testimony both gave Oct. 1 in a three-hour hearing on alleged violations of a standing court order.

From 'pleasant' to 'nasty' ...

“Evidence presented clearly establishes that [Conley] violated the terms and conditions of the existing restraining order on hundreds of occasions. Some of the contacts were, apparently, pleasant. Others were not. Some were downright nasty, hostile and threatening,” Cecil said in his written ruling.

Things came to a head between the two in October of 2009 and Hume made it clear to Conley that he wanted “no further contact except on official city business and only through his public email address, not his private email address,” Cecil noted.

Conley had been active in Hume’s Elk Grove city events and other political causes which brought her to city council meetings.

Cecil wrote that at the court hearing, Conley “acknowledged that she ignored the request and continued with her barrage of emails, texts and phone calls to [Hume].”

Although Conley claimed in court that Hume also continued to send her friendly text messages, “she offered no proof that such text messages were ever sent other than her testimony…The court does not find [Conley] to be credible on this point."

“The multitude of phone calls and emails that were not responded to by [Hume] are in stark contrast to her claim that he was sending friendly text to her each morning during the fall of 2009 through spring of 2010,” Cecil wrote.

Cecil summed up the situation saying that it was clear that while Conley wished to have relationship with Hume that was never fully reciprocated to by Hume, “It is equally true that [Hume] engaged in a course of conduct that invited [Conley] to violate the restraining order.”

Conley testified that Hume “re-engaged” their relationship.

“Apparently so,” Cecil observed, “but he again disengaged in October 2009. For the next eight months, it appears that [Hume] did nothing to encourage the harassment perpetrated by [Conley].”

Hume’s decision to ignore the restraining order and to allow [Conley] back into his life and his political affairs was a poor one, lacking in judgment and common sense,” Cecil noted.

“Under some circumstances, the court would tell [Hume] that by flaunting the restraining order that he so desperately wanted in 2007 he forfeits his ability to again seek relief….[but This situation is different,” Cecil wrote.

Hume had a right to back out of seeing Conley and he clearly communicated his desire to retreat from further contact,” Cecil wrote, but “His record was a relentless assault by [Conley] that took many forms and involved other people and agencies, It went on for months."

He concluded, “It appears to the court that [Hume] has every reason to be concerned that, but for the restraining order, the harassment will continue.”

Cecil then addressed the issue of Hume’s new girlfriend, Lisa Lent, repeating what he had said in the Oct. 1 hearing.

Hume’s “girlfriend, Lisa Lent, cannot be included as a protected party in the order [because she] is not a ‘family or household member’ If she wants to be protected from harassment by [Conley] Ms. Lent will need to file her own action.”

Hume’s attorney, Ron Peters, had asked that the new stay-away order last five years. Cecil declined. He ordered this one to extend just one year.

“The one-year period will also be sufficient to see if “[Conley’s] pledge not to harass [Hume] was made in good faith. In the event that [Hume] again opts to ignore the protection afforded by his restraining order, it is hoped that [Conley] will immediately petition the court to vacate the restraining order that is being issued or, in the alternative, [she] will file a motion to vacate his new restraining ordered concurrent with his change of heart,” Cecil concluded.

So ends one stormy Elk Grove political affair, forever. Perhaps.

More fines for those who can't pay

2010-10-06T15:46:00.000-07:00

Two new reports show the poor are being priced out of the justice system.

And if they can't pay, where do they go? Why to jail, of course, where they rack up even more debts for the privilege of being incarcerated.

Sparks in limbo; Rampone set to go; lawyers await word from the Big Guys

2010-10-05T11:55:00.000-07:00

by Tom Nadeau

The separate yet entwined murder trials of Sparks and Rampone were taken up in Yuba County Superior Court Monday, with the first getting postponed and the second ordered to proceed.

Defense attorney Justin Scott asked visiting Judge R.M. Smith to delay the start of People v. Sparks. The US Supreme Court is still mulling whether Dustin William Sparks can be tried for homicide despite a legal premise established decades ago.

Smith agreed and set Sparks next court date for 1:30 p.m. Nov. 11. In rescheduling the matter, Smith said he had read the Sparks writ of certiorari and was clearly intrigued. Cow county judges don’t often get to rule, even marginally, in matters before the USSC.

Estoppel-ong Cassidy rides again ...

The legal premise in question is “collateral estoppel,” which holds that a defendant can not be tried in a new case on an issue the courts had resolved long before in a previous case.

Sparks is charged with special circumstances first-degree murder in the 2005 double-slaying of Christopher Hance and Scott Davis at an Olivehurst medical marijuana farm. Angelic Louise Rampone is charged with the same crimes from the same incident.

From such simple beginnings, the legal nuances of this multiple-defendant case keep getting more and more complicated.

As investigators paint the death scene, several people went to the fenced property to steal marijuana. Hance had legal permission to grow the marijuana for his father who used the natural drug to ease his severe physical pain.

When Hance and Davis accosted the thieves, one of the intruders, Michael Huggins, shot them dead.

As the Sparks defense recounts the incident, when the group arrived, only Huggins entered the property.

Sparks had either gotten cold feet or had decided that the scene was not playing out as he expected, so he stayed outside the fence. Driver Rampone remained in the vehicle.

When the shooting erupted, Sparks and Rampone fled the scene, according to earlier statements.

Triggerman Huggins was arrested and tried for special circumstances first-degree murder, but a Yuba County jury found him guilty only of voluntary manslaughter.

Jurors justified their verdict by saying they believed Huggins did not intend to rob or burglarize when he arrived at 3 a.m., armed with a loaded .45 caliber handgun. Huggins was still in prison at last report.

Meanwhile, the prosecution of Sparks and Rampone on special circumstances first-degree murder charges continued, with the defense arguing the two couldn’t be, since the actual killer had only been convicted of a much lesser crime.

The original judge, recently retired James Curry, ruled the pair could not be. The prosecution, now led by Deputy District Attorney Michael A. Byrne appealed Curry’s decision to California’s 3rd District Court of Appeal, and won.

Undaunted, the Sparks defense appealed that decision to the state Supreme Court, and lost again.

The defense then had to decide whether to accept the state court ruling and stand trial, or should it take the crucial question to the US Supreme?

Rampone’s attorney, Roberto Marquez, decided to abide by the state Supreme Court ruling and go to trial.

The deceptively mild-mannered Scott, on the other hand, decided to go for it – to take Sparks all the way up to the Top Nine.

Appeals specialist attorney S. Michelle May of the Central California Appellate Program wrote the writ. She limned out the three main points the court was being asked to resolve:

1) When a state’s highest court overrules its own prior authority which had established that the State was prohibited from prosecuting a criminal charge, by a decision that is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” does the Due Process Clause permit the court to apply its decision retroactively in order to vacate the trial court’s dismissal of the criminal charge?

2) When a state’s highest court overrules its own prior authority which had established that the State was prohibiting from prosecuting a criminal charge, by a decision that is contrary to a statutory mandate of the state’s legislature, does the Due Process Clause, permit the court to apply its decision retroactively in order to vacate the trial court’s dismissal of the criminal charge?

3) In light of questions (1) and (2) above, should the Superior Court’s order prohibiting the State from prosecuting petitioner vicariously for felony-murder, on a traditional basis of vicarious liability collateral estoppel recognized by the California Supreme Court’s decision in People v. Taylor … which was overruled retroactively in this case be affirmed?

Prosecutor Byrne said that, if the USSC were to take up the Sparks writ, it would have no effect on Sparks’ trial here. The state Supreme Court and lower state court decisions had already dealt with the collateral estoppel issues raised in Taylor, Byrne felt.

So, Rampone will proceed to trial in about two weeks and Sparks should, too, after the Nov. 1 hearing, Byrne said.

The two trials were separated for “tactical reasons,” Byrne said.

Judge Smith set pre-trial court hearings in People v. Rampone for Oct. 15 and Oct. 18. The jury trial is scheduled to begin Oct. 19.

Mum's the word on grand jury probe

2010-10-04T17:10:00.000-07:00

by Tom Nadeau

A spokesperson for the Sacramento County Grand Jury would neither confirm nor deny whether the investigative body is looking into a rumored probe into Elk Grove City Council member Patrick Hume.

Grand Jury Coordinator Becky Castaneda responded Monday to a query left Friday asking whether it was true, or not true that Hume had drawn the attention of the citizen investigative panel.

"The policy is to make no statements," Castaneda said, pleasantly enough.

However, Hume testified in court and under oath that he had been contacted by the Elk Grove city attorney saying he was the subject of a grand jury query.

The Fair Political Practices Commission recently confirmed that it was looking into allegations concerning Hume – allegations that were brought to its attention by Linda Ford.

Talk of a possible grand jury show-and-tell session with the beleaguered Hume surfaced about that same time.

Not confirming the unconfirmable ...

The Elk Grove News can definitely confirm that it can not confirm that the grand jury wouldn’t confirm the previously unconfirmed verbal report – to borrow a dodge from seasoned public servants.

Sacramento County Superior Court Judge Thomas Cecil heard three hours of testimony Friday regarding Hume’s relationship with Conley, his former political supporter and campaign worker.

The two have been embroiled in a rather torrid tiff over their split-up apparently brought on by his new alliance with another acquaintance of the female persuasion, one Lisa Lent.

Hume obtained a court stay-away order against Conley – one of those “don’t talk to me because I don’t want to talk to you” court directives – which seemed to have been honored more in the breach than in the observance, since Conley produced in court (and Hume confirmed) a hefty volume containing hundreds of pages of transcribed phone messages, text messages and emails that the two had exchanged.

Both admitted attending political events together when they were legally required to avoid each other as best they could.

A stay-away order is a legal admonition that allows people who have professional roles that make a restraining order too constricting for them to obey – e.g., the two both hold public office and/or work in politics and may be required to be at the same events at the same time.

The stay-away order lets them appear at the same event, with the caveat that they not pester each other while they are there.

Last week, Hume asked the court to extend and toughen the stay-away order. Judge Cecil wondered, Why? – since the two star-crossed ex-friends seemed to keep colliding with each other, anyway.

Cecil said he will have a formal ruling and solution ready by Oct. 8.

Delay sought in Santana, Vasquez; documents now reveal DA plotting

2010-10-04T06:52:00.001-07:00

by Tom Nadeau

The state Attorney General’s Office has asked the 3rd District Court of Appeals to give it 30 more days to answer the writs of mandate filed by Yuba-Sutter attorneys Jesse Santana and David Vasquez.

Meanwhile, a controversial document long missing and conspicuous for its absence from the public file in People v. Santana, Vasquez, CRF08825 has finally surfaced.

The document provides the first tangible evidence supporting suspicions that a cabal of local prosecutors conspired to lodge dubious criminal charges against Santana in order to scuttle his appointment to the Sutter County bench and snag the post for one of their own.

Names are mentioned.

Delay asked; one plot meal at Chinese lunch ...

The delay request was signed by Deputy Attorney General David A. Lowe and submitted Sept. 23. It is expected to be granted.

Lowe said, “This is our first – and only contemplated – request for an extension of time” in 3DCA case #C0660008, Santana v. Yuba County Superior Court & People.

The delay was needed, he said, because he still lacked one prominently cited “exhibit/transcript” and a few other key documents. Lowe added:

From a personal standpoint, I have family obligations Sept. 25 & 26 that will prevent further work on the instant opposition. As this court is likely aware as a result of the petitioner’s filing, the record in this case is significant in size and the parties have filed numerous exhibits and documents in support of their motions and oppositions….While I am familiar with most of these exhibits, given my time limitations and the absence of one exhibit, I will not have an adequate opposition completed in time for a timely filing.

In addition to this opposition, “the people also intend to file a petition for writ of mandate challenging the Aug. 27th, order, and with it, intend to ask this Court to reinstate counts II and III of the amended indictment which the superior court dismissed. The People will also be asking this Court to stay superior court proceedings pending resolution of the petition.”

In other words, when the parties meet again Yuba County Superior Court the state is likely to ask for – and get – an indefinite postponement, because:

“The issues between the petitioners’[Santana and Vasquez] petitions and the People’s [the AG] petition are inextricably intertwined as are the facts. Responding to petitioners’ arguments will at the very least necessarily implicate discussion of the lower court’s reasoning.”

Also conspicuous for its absence in Lowe’s request is any mention of related events that “necessarily implicate” the two county district attorneys’ offices and two prosecutors recently appointed to Yuba-Sutter benches.

Incriminating document surfaces

The document that implicates these public figures recently came to light and a full complete copy was obtained by Notable Trials.

The incriminating document is from a diary kept by Joseph Griesa, person whose two sessions of testifying to a Yuba County grand jury provided the springboard Yuba County District Attorney Patrick McGrath used to indict Santana and Vasquez on felony bribery and ethical charges.

Here is the Jan. 18, 20008 entry in Griesa’s diary:

I received a call from a friend of mine who told me that Attorney Santana’s bid for Sutter County Superior Court was in jeopardy due to my case and the proposed civil compromise, and that it might have been a contributing factor for his non-continued representation of Ms. AXXX [a minor-aged person known elsewhere in court documents as “SA”] . He also said that attorney Jesse Santana and Attorney Mike were related by marriage and their offices related by marriage and their offices were practically next door to each other. He also told me of a luncheon’ [sic] he had been to at a local restaurant where members of both the Sutter and Yuba County DA’s offices were at. He said that one of the judges for Yuba County was there as well, along with the attorney that was running against Attorney Jesse Santana, who also works in the DA’s Office.

One of the topics at the table was the upcoming appointment of the new Superior Court Judge position for Sutter County.

A week later another friend of mine, who I spoke to about the circumstances of my case called me to tell me he had an investigator from the California Judicial Review Board call him and ask him questions regarding my case and what role Attorney Santana had had in my case. He believed the Yuba County DA’s office was very interested in my case but not for the obvious reasons, It was his belief that the appointment of Attorney Jesse Santana for Sutter County Superior Court Judge was highly contested by both the Yuba and Sutter County DA offices and that they wanted one of their own in that position. Neither Yuba nor Sutter County have a judge of anything other than white Caucasian, and because of Jessie’s [sic] Hispanic ethnicity he could get the appointment, The judicial review would be on-going until at least June of 2007 before a decision would be reached by the Governor’s Office, according to my friend. There are currently at least three female superior court judges in Yuba and Sutter County and the current DA’s choice is one of their own and she is a white female. According to my friend it is for that reason that the Yuba County DA’s office will strike before the appointment is announced. [Emphasis added} In addition, according to my friend, attorney David Vasquez has been reaping the benefits of having both of his former law office partners now on the bench for both Yuba and Sutter County. One of the judges is the presiding superior court judge for Yuba County. [Ed. Note: That would be the recently retired Judge James Curry.] It was his opinion that Attorney Vasquez is often the recipient of getting the top felony court cases that are appointed by the residing judge. IN addition, Attorney Vasquez had won several high profile criminal cases against DA McGrath to include a recent murder case in which David’s client went completely free despite several felony charges, It is for these reasons that my attorney friend is concerned about my case, the potential political fallout, and collateral damage it could do to me and my family. As he puts it, “Joe you are the appetizer of the dinner that McGrath is cooking.”

In a recent face-to-face jailhouse interview, Griesa revealed the name of the restaurant where the fateful luncheon meeting took place, the approximate date of the meeting, and, most importantly, the names of the key people there.

The players gather at a Chinese restaurant

The crucial get-together was held at the Szechuan restaurant in Marysville. It took place in mid-December, 2007. Attendees a included Yuba County DA Patrick McGrath; Yuba County Superior Court Judge Julia Scrogin (who had been a prosecutor in the Sutter County DA’s Office); and Sutter County Deputy District Attorney Susan Green (who was then competing for the Sutter County judgeship and was appointed to that position shortly after Santana was forced out due to the Yuba County indictment).

Absent from that meeting were Sutter County DA Carl Adams and Assistant Sutter County Frederick Schroeder, both of whom were strong backers Green’s appointment to the Sutter County bench slot.

The “friend” who provided the eyewitness information on the Szechuan meeting is a well-known local attorney with unimpeachable insider information on the politics of Yuba-Sutter judgeships and appointments thereto and a reason to know these facts.

Notable Trials is currently withholding that person’s name to protect that person and to protect our on-going investigation into possible criminal wrong-doing by top current and past officials in the two county DA’s offices and two sitting judges in the two counties.

More names floated, this time for judgeships

Notable Trials will also be taking a closer look at how gubernatorial appointments are being finagled in these two counties and into the backgrounds and political backers of the candidates for the open appointment to replace the recently retired Judge Curry in Yuba County.

According to Mark G. Steidlmayer, a Sutter County attorney who is keeping a close eye on the judicial appointments, at least five local attorneys have so far thrown their names in for the Yuba bench appointment.

They have been identified because they are included in query letter sent out by the state Judicial Nominee Evaluation Commission – known in the trade as “the Jenny Commission” – which investigates presents to the governor its list of recommended potential candidates for judgeships.

The current list of judgeship hopefuls include:

-- Steve Lamon: an attorney now in private practice in Sacramento County, but was formerly in Sutter County and still advertises heavily in the Appeal Democrat.
-- Steve Berrier: a private practice attorney with the Rich Fuidge firm in Marysville
-- Chris Carlos: currently a prosecutor with the Sutter County DA’s Office County
-- Benjamin Wirtschafter: Yuba County Public Defender
-- Brenda Harris> an attorney in private practice in Sutter County

“Questionnaires are sent to the attorneys, but responses are also taken “from anyone. Citizens included. If not asked I am sure citizen comments are nonetheless welcome,” Steidlmayer said.

The state Constitution calls for judges to be elected, but, under the law, if a bench vacancy should occur the governor may appoint a replacement. The appointee must then run for election in an open race at the next county election following the expired term.

How it was; how it is

Well, that’s the law anyway. However, many years ago the State Bar of Californiaand the Governor’s Office together connived to elbow out citizen participation.

The state constitution allowed the governor to appoint judges if and when judgeships became vacant through death or retirement.

The scam was developed in which a sitting judge would retire early – say, six or seven months before his or her six-year term expired – thus handing the governor a plum appointment to make.

Once appointed by the governor, the new judge got to run in the next election as an incumbent, a posh position that drastically reduced any possible rival candidates.

Not satisfied with that scam, the next step the SBA, the governor’s political operatives and interested parties such as so-called “watchdog groups” backed a successful ballot initiative that allowed county clerks to remove the names of sitting judges from the ballot if they were not opposed. No opposition, no need to be on the ballot, right.

It only took a few election cycles for the public to forget that judges were supposed to be elected. As a result, at least in the mistaken public mind, judges are appointed in California, not elected.

“That so many are seeking the post is an economic indicator as to small town law practice,” Steidlmayer notes, adding [It is] hard to match (with a conscience) Judge's pay and benefits.”

Steidlmayer, who freely admits to being a Santana supporter, concludes, “The sad irony is that Santana is shut out from even applying although he is most qualified. "Fragged" by the system is much too kind” a description of what was done to Santana.

Notable Trials has a detailed follow-up report coming soon on a formal request Steidlmayer has filed with the US Attorney in Sacramento calling for a full-blown investigation by an unprejudiced agency into possible misuse of official powers in the indictment of Santana and Vasquez and the appointments of local judges.

Juror's regret prompts re-trial bid in controversial People v. Mercer

2010-10-03T11:37:00.001-07:00

by Tom Nadeau

Sentencing of Timothy Brian Mercer was postponed at the last moment for one month because one of the 12 jurors who convicted him of lewd and lascivious conduct with a girl under 14 had expressed deep misgivings about her ‘guilty’ vote.

Defense attorney Chad Cameron Couchot asked for the delay to give him time to verify Juror #9’s misgivings and decide whether they provided sufficient reason to re-try the 43-year-old Mercer.

As it stands, Mercer, faces from a maximum of eight years in state prison to a minimum of five years on probation, depending on which option Yuba County Superior Court Judge Kathleen Rose O’Connor imposes in People v. Mercer, #09-281.

Whichever term O’Connor chooses, Mercer will have to register as a sex offender forever more.

Too late the phalarope?* ...

O’Connor initially objected to the sentencing delay request on the grounds that Juror #9’s letter of regret had been filed too late.

Deputy District Attorney Melanie Bendorf also scoffed at the notion of an 11th-hour temporary reprieve for Mercer, saying the reasons given were “inadequate why defense needs to investigate.”

However, Notable Trials has obtained a copy of Juror #9’s “To whom it may concern” letter to the court and the reasons cited appear to be substantial and straightforward.

After first noting that she did not know Mercer personally, Juror #9’s letter states:

As a juror in his trial, I felt very uncomfortable making a decision based on the “Evidence” provided against Mr. Mercer. Literally the only “evidence” provided against him was [a minor-aged girl’s] testimony. Also, the D.A. kept referring to an interview conducted by Mary Barr [the prosecution’s investigator] on [the minor-aged girl]. It discomforted me greatly that the interview conducted was never shown to the jury; I was very confused to say the least. We were a hung jury for about three days, and it was very difficult for us to make a decision based solely [the girl’s] interview. It wasn’t that we didn’t believe [her] but she was a child who appeared to be very confused.

The judge gave us, the jury, many rules to follow ager the trial for our deliberation. That is the only reason we came to the guilty verdict. We, the jury, had no evidence to discredit [the girl]. And the way we perceived the judges [sic] rules was that we had to believe her if she was not discredited. So in the end [the girl’s] testimony was the only “Evidence” that condemned Mr. Mercer.

During the Mercer trial Notable Trials reported:

The jury of six men and six women deliberated for three days. During that time they asked for five read-backs and declared themselves hung three times. At one point, it came out that the jurors were split, 8-4.

Each time they declared themselves unable to agree on a verdict, Judge Kathleen R. O’Connor ordered them back to the jury room and to continue deliberating.

The four outsiders were eventually persuaded to change their minds and Mercer was convicted as charged.

Juror #9’s notarized affidavit to the court continued:

I feel that [the girl] was not lying about being molested at some point in her life; [emphasis added] however, I do feel that she blamed Mr. Mercer of these crimes because she was comfortable with him and in his home, and also because she was finally ready to open up about these horrendous crimes committed against here.

I ask you [the judge] to reconsider his trial, or sentence him lightly. I am 100% positive in my heart that he is not guilty [emphasis added] accused against him.

The girl in question was a seven-year-old foster child who had previously resided in and been removed from other households before being received by the Mercers.

Juror #9’s doubts seem to be based on her concerns that the incriminating statements the prosecution investigator had wiggled out of the girl using play-toy props might just as well have been references to a prior molester, but transferred to Mercer because she felt safe with him.

Citing the late request for a delay and re-trial, O’Connor demanded Couchot make his request under oath and after questioning.

Under oath, Couchot explained that he needed the extra time in part because Juror #9’s letter came in at the last minute and the defense investigator was out sick that week and was unavailable.

However, once the investigator was recovered it would only take a few days for her to investigate and substantiate the juror’s doubts. Then it would take him another week to write the motion, Couchot told O’Connor.

An added minor complicating factor was that O’Connor was going on vacation the next day and she would be out for some time, in part because the walnut season is coming to a close and it is widely known that O’Connor, also an orchardist, likes to take part in the harvest.

After grilling Couchot, O’Connor rescheduled Mercer’s sentencing until 9 a.m. Nov. 8. She also ordered the defense to have its investigative report and motion in my Oct. 29 and the prosecution to respond by Nov. 5.

Juror regret is not uncommon. Here is another instructive example.

*Too late the phalarope reference explained.

Cecil ponders tense Hume-Conley case:past imperfect; but future perfect? Well...

2010-10-02T07:33:00.000-07:00

by Tom Nadeau

Sacramento County Superior Court Judge Thomas M. Cecil listened for three hours Friday to Elk Grove City Councilman Patrick Hume and his former flame Constance Conley bitterly complain in excruciating detail their on-again, off-again love-hate affair.

When they were finally done accusing, denying and being unable to recall, Cecil said he would rule by Oct. 8 on if the politically active Conley and Hume must remain apart.

Their rocky relationship had lasted about five years – years marked alternately by break-ups and make-ups and break-ups again.

During one especially acrimonious estrangement Hume obtained a stay-away order that barred Conley from contacting him. In that same interim Hume, 38, took up with a new girlfriend, one Lisa Lent.

At the same time, however, Hume and Conley blatantly ignored the stay-away court order and attended political events and fund-raisers together, Conley’s attorney Paige Minor Hibbert elicited through questioning.

“Hundreds and hundreds” of phone calls, emails, text messages ensued, Hume and Conley admitted, under questioning by Hume’s attorney, Ronald James Peters.

The nasty details …

Not only did Hume and Conley exchange many calls and messages, some individual conversations were extraordinarily long.

Telephone records showed (and Hume confirmed) that one particular call between himself and Conley lasted eight hours and 10 minutes.

The calls, messages and emails sometimes became nasty, with Conley making unflattering accusations against Hume and Lent.

When Conley took the stand, she produced a three-ring binder packed four inches thick with printouts of emails and other exchanges between herself and Hume.

Hume’s demeanor on the stand was testy and his answers were curt. At one point, apparently impatient with how things were proceeding, he began testifying directly to the judge.

Peters, a seasoned and respected attorney, immediately cut Hume short, telling him in very few words that it was the attorney not the witness who led the questioning.

That odd exchange was but one of several uncommon events highlighting the courtroom action in Hume v. Conley, case #06CP01317.

Judge ignores past imperfect wants future perfect plans instead

The parties gathered in Cecil’s Department 16 courtroom at 9 a.m. Cecil laid out the issues at hand as he saw them, summarized the legal options allowed in the given circumstances and sketched out how he wanted to proceed.

For one thing, Cecil wanted to limit the testimony to what the parties wanted to accomplish by way of resolving their argument. That meant he was not interested in rehashing their entire history.

Conley was clearly disappointed. It appeared she had wanted to air all of her grievances against Hume, but that was not to be.

Cecil clarified another apparent misunderstanding by Conley.

“Hume is not restrained. Only Conley is restrained,” he pointed out.

More to the point, Cecil added, if neither party could abide by the first order, what good would it do to issue another.

One truly bizarre moment occurred when Hibbert -- in an apparent attempt to demonstrate how cordial things once were between the two now-bickering people -- tried to enter into evidence two neckties Conley had given Hume.

After Cecil rejected the ties as evidence, he joked, "Are the ties now for me?"

Only one witness was called to testify and that was Elk Grove Vice Mayor Steve Detrick. When asked by Hibbert to describe the interaction between and Conley and Hume at a political event, Detrick said it was “cordial.”

Testimony sometimes acrid

Towards the end of the three-hour hearing, Cecil asked the attorneys to summarize what it was they wanted him to do.

Peters said Hume wanted the order the judge granted to do three things: 1) extend the existing order for five years, although three years would do; 2) impose significant sanctions on Conley if she violated the order, and 3) grant attorneys fees for the time and expense laid out for the case.

Hibbert objected to any order being imposed on his client, but he agreed that the attorneys should be granted reimbursement for legal fees.

At the last minute, Peters added one further request. He asked Cecil to extend the order to include a demand that Conley stay away from Lent and that it be enforced by the police.

Cecil balked at that. First of all, police had expressed some doubts they could effectively enforce such an order and, besides, it would be improper to include Lent in this particular legal procedures.

If Lent wanted an order against Conley, she would have to seek one separately and of her own accord, Cecil said.

After the hearing Peters immediately departed to meet a court commitment in Placerville. Hibbert spoke briefly, saying he had hoped to bring more information to light in his questioning, but Cecil had barred that.

He was asked to summarize the on-again, off-again affair that seems to have developed between Hume and Conley. Hibbert agreed it was an uncommon situation, saying it was like Hume and Conley “feed off each other.”

Cole gets 14 years for killing Malmstrom

2010-09-27T18:40:00.000-07:00

by Tom Nadeau

A Yuba County judge sentenced Todd Allen Cole Jr. Monday to 14 years in state prison for the 2009 manslaughter of Scott Malmstrom.

Cole was tried for first-degree murder in the gruesome stabbing murder, but the jury hung. He was to be retried in People v. Cole, #09-469, but agreed to plead guilty to a lesser charge of voluntary manslaughter.

Malmstrom was found dead July 2009 in his apartment in the 1400 block of North Beale Road, East Linda. He had been stabbed some 17 times.

Crime called 'disgusting, horrible' ..

The main wound was a slashed throat. There were two other significant stab wounds. The remainder were described as comparatively minor “poking” wounds..

Citing a “high degree of viciousness” in the attack, Judge Kathleen O’Connor gave Cole 11 years for the killing. She then added one year to the term because a knife was used and then two more years over that because Cole had a prior felony record when he committed the act.

A letter from Cindy Miller, the sister of the victim and a Sacramento resident, was read aloud in court. In it, Miller called the crime “disgusting, horrific” and urged O’Connor to levy the maximum possible sentence.

Defense attorney Brian Davis asked O’Connor to consider a lesser sentence, saying the picture of the crime as painted by sheriff’s investigators did not accurately report the true circumstances of the incident.

Davis said Cole was much smaller than Malmstrom, that Malmstrom was the aggressor, that there were sexual overtones to the reason Malmstrom attacked Cole and that the nature of the wounds Malmstron received were “poking” wounds indicating Cole was just trying to fend off Malmstrom.

Deputy District Attorney John Vacek said Cole had “shown no remorse,” as revealed by the fact that he left the scene of the crime – a small apartment where the victim’s blood had gushed to the floors, walls and ceiling – and did not report the crime.

Sparks certiorari decision delayed a week

2010-09-27T18:22:00.000-07:00

by Tom Nadeau

It appears the US Supreme Court will not know, yea or nay, whether it will consider the writ of certiorari recently filed by Dustin William Sparks for one more week, his defense attorney told a Yuba County Superior Court judge today.

Defense Attorney Justin Scott said information posted on Monday indicated the high court justices were still weighing its next step in Sparks v. California, USSC #10-5165 and did not expect to have a final answer until Oct. 4.

Further action nixed for one week ...

Judge Kathleen O’Connor postponed further action in the Yuba County case of People v. Sparks until after that date.

Sparks is asking the USSC to review and overturn a disputed lower court ruling that he can be tried for murder in the shooting deaths of two men in September 2005. Sparks has been held in custody since the killings.

The California Supreme Court opined earlier this year (#S164614) that Sparks could be tried for the deaths of Scott Davis and Christopher Hance, even though Michael Huggins already had been convicted of killing the men while Sparks was elsewhere.

The two were killed during an attempted medical marijuana robbery in the Marysville, Calif. suburb of Olivehurst.

Huggins claimed self-defense. He was charged with first-degree murder. A Yuba County jury convicted him of voluntary manslaughter. Sparks, on the other hand, faces a first-degree murder charge.

Sparks was one of several named accomplices. He had planned to enter the Hance property with Huggins, but backed out at the last minute, Sparks later said.

The Yuba County District Attorney asserts that Sparks was “vicariously liable” for the killings and could be tried for first-degree murder, despite the previous jury verdict that Huggins was guilty only of voluntary manslaughter

On the contrary, the defense argues, the state Supreme Court prohibited such “felony-murder prosecution on the ground of vicarious liability collateral estoppel as recognized by [a previous ruling in] People v. Taylor."

“Collateral estoppel” is a common law doctrine that prevents relitigating an already established legal issue.

The original Yuba County judge ruled in Sparks’ favor, but the prosecution appealed it to the 3rd District Court of Appeals. That decision went against Sparks causing the defense to appeal it to the state Supreme Court which issued an opinion on the issue Feb. 8, 2010.

In its new ruling against Sparks, the state Supreme Court appears to be over-ruling its own earlier decision in Taylor..

Sparks’ attorney, Justin B. Scott, appealed the state Supreme Court ruling by filing a writ of certiorari with the US Supreme Court – an exceedingly rare occurrence as Yuba County cases go.

The defense’s writ was drafted by Central California Appellate Program attorney S. Michelle May. In her 40-page petition, May asks the USSC justices to consider three questions:

1) When a state’s highest court overrules its own prior authority which had established that the State was prohibited from prosecuting a criminal charge, by a decision that is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” does the Due Process Clause permit the court to apply its decision retroactively in order to vacate the trial court’s dismissal of the criminal charge?

2) When a state’s highest court overrules its own prior authority which had established that the State was prohibiting from prosecuting a criminal charge, by a decision that is contrary to a statutory mandate of the state’s legislature, does the Due Process Clause, permit the court to apply its decision retroactively in order to vacate the trial court’s dismissal of the criminal charge?

3) In light of questions (1) and (2) above, should the Superior Court’s order prohibiting the State from prosecuting petitioner vicariously for felony-murder, on a traditional basis of vicarious liability collateral estoppel recognized by the California Supreme Court’s decision in People v. Taylor … which was overruled retroactively in this case be affirmed?

In other words, May, Scott and Sparks are asking whether the lower court can arbitrarily revive legal issues long thought settled by earlier US Supreme Court decisions.

If it does get to the USSC, Deputy California Attorney General George M. Hendrickson will argue for the state.

US Supreme Court may act on Sparks

2010-09-27T06:58:00.000-07:00

by Tom Nadeau

The public may learn today whether the US Supreme Court will consider Dustin William Sparks’ request that it overturn a disputed lower court ruling that he can be tried for murder in the shooting deaths of two men in September 2005.

The California Supreme Court opined earlier this year (#S164614) that Sparks could be tried for the deaths of Scott Davis and Christopher Hance, even though Michael Huggins already had been convicted of killing the men while Sparks was elsewhere.

The two died during an attempted medical marijuana robbery in Olivehurst, a suburb of Marysville.

Huggins claimed self-defense. He was charged with first-degree murder. A Yuba County jury convicted him of voluntary manslaughter.

Sparks was one of several named accomplices. He had planned to enter the Hance property with Huggins, but backed out at the last minute, Sparks later said.

The Yuba County District Attorney’s Office claims Sparks was “vicariously liable” for the killings and could be tried for first-degree murder, despite the previous jury verdict that Huggins was guilty only of voluntary manslaughter

The defense argued that the state Supreme Court had long ago prohibited “felony-murder prosecution on the ground of vicarious liability collateral estoppel as recognized by [a previous ruling in] People v. Taylor.”

Stopping estoppel? ...

“Collateral estoppel” is a common law doctrine that prevents relitigating an issue. The legal premise is that once a court has decided an issue of fact or law, then that decision precludes relitigation of the same issue in a suit on a different cause of action involving a party to the first case. It seeks to prevent legal harassment or the abuse of judicial resources.

The original Yuba County judge ruled in Sparks favor, but the prosecution appealed it to the 3rd District Court of Appeals. That decision went against Sparks causing the defense to appeal it to the state Supreme Court which issued an opinion on the issue Feb. 8, 2010.

In its new ruling against Sparks, the state Supreme Court would appear to be over-ruling its own earlier decision in Taylor..

Yuba County Superior Court Judge Kathleen O’Connor then ordered Sparks’ trial for the double murder to proceed. It was to start this month.

Sparks’ attorney, Justin B. Scott, appealed the state Supreme Court ruling by filing a writ of certiorari with the US Supreme Court – an exceedingly rare occurrence as Yuba County cases go.

If the US Supreme Court accepts the writ and rules on it, this obscure case from Yuba County, Calif. could wind up resulting in a stellar legal decision ranking with, say, the historic Miranda ruling

Miranda v. Arizona was a landmark 1966 US Supreme Court decision (5–4) that held that inculpatory and exculpatory statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them. This had a significant impact on law enforcement in the United States, by making what became known as the Miranda rights a part of routine police procedure to ensure that suspects were informed of their rights.

The defense’s writ was crafted and written by attorney S. Michelle May of the Central California Appellate Program. Her elegantly-written, bluntly-worded 40-page petition asks the USSC justices to consider three questions:

1) When a state’s highest court overrules its own prior authority which had established that the State was prohibited from prosecuting a criminal charge, by a decision that is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” does the Due Process Clause permit the court to apply its decision retroactively in order to vacate the trial court’s dismissal of the criminal charge?

2) When a state’s highest court overrules its own prior authority which had established that the State was prohibiting from prosecuting a criminal charge, by a decision that is contrary to a statutory mandate of the state’s legislature, does the Due Process Clause, permit the court to apply its decision retroactively in order to vacate the trial court’s dismissal of the criminal charge?

3) In light of questions (1) and (2) above, should the Superior Court’s order prohibiting the State from prosecuting petitioner vicariously for felony-murder, on a traditional basis of vicarious liability collateral estoppel recognized by the California Supreme Court’s decision in People v. Taylor … which was overruled retroactively in this case be affirmed?

In other words, May, Scott and Sparks are asking whether lower court (and the judges and prosecutors plying their trades within them) can, upon their own whims, resurrect legal issues that the US Supreme Court had debated, decided and declared dead and buried long, long ago..

The defense has already received an initial response from the land’s highest court indicating it was mulling whether to take Sparks appeal under submission.

In an earlier hearing, Scott told O’Connor of the USSC’s pending notice. He asked her to postpone the trial at least until the High Court decided. That decision, Scott said, was expected Sept. 27 – today.

O’Connor was reluctant to delay the Sparks trial any longer, but agreed to hold off setting any specific court dates until now.

Sparks has been held in custody since the killings.

Writ filed in Santana, Vasquez;other trial actions linger in limbo

2010-09-22T10:03:00.001-07:00

by Tom Nadeau

The defense has filed a writ of mandamus asking the 3rd District Court of Appeals to reject a Yuba County court ruling that a trial may proceed in People v. Santana, Vasquez, #08-825 a spokesperson for defendant Jesse Santana said Wednesday.

Supervising Deputy Attorney General Michael A. Canzoneri has not yet responded to a Notable Trials query as to what action, if any, his office has taken, or is contemplating taking.

When visiting Judge John Darlington ruled in August that the county superior court trial could proceed against the two beleaguered lawyers, both sides – defense and prosecution – indicated they might file such writs.

Neither was entirely happy with Darlington’s rulings, since he rejected some arguments by both sides. He dismissed some charges against Santana, but not all. He held Vasquez for trial on one charge that was dismissed against Santana. The prosecution argued strongly that none of the charges be dismissed.

A writ of mandamus is a judicial remedy in which a higher court can order, or mandate, that a lower court do or refrain from doing some specific act which the lower court has already undertaken or is considering undertaking.

Think of a school crossing guard sticking up a “STOP!” sign.

Next action date somewhat iffy ...

The 3DCA’s response to the Santana, Vasquez writ could come "at any time," a Santana spokesperson said Wednesday. But appeals justices typically rule on writs within 90 days, attorney Dave Vasquez's defense attorney Michael Barrette said earlier.

Santana and Vasquez were expected to return to court at 1 p.m. Oct. 1 to enter their formal pleas. Despite two years of hearings, they have yet to be actually arraigned in this mammoth case. A calendar of pre-trial hearings would also be set that day.

However, Santana’s spokesperson said the status of that Oct. 1 plea date was unclear at this time.

Santana initially faced charges of bribery and unethical legal conduct. The bribery charge against Santana was dismissed by Darlington.

Their case is legally significant because it could -- depending on how the courts rule on it -- jeopardize fundamental ways California attorneys counsel their clients and negotiate with the opposing side.

Cole update: now to be sentenced Sept. 27

2010-09-20T15:31:00.000-07:00

by Tom Nadeau

The re-trial of suspected killer Todd Allen Cole Jr. expected to open Tuesday was instead rescheduled for judgment and sentencing in Yuba County Superior Court at 9 a.m. Sept. 27 in Department 35.

Cole is accused of stabbing Scott Malmstrom to death in July 2009 in the victim’s apartment in the 1400 block of North Beale Road, East Linda.

5 possible counts ...

Cole faced charges of murder, voluntary manslaughter, special allegations of being a felon at the time of the alleged crime and assault with a deadly weapon.

He apparently reached a plea agreement with the prosecution, but it was unclear what the terms of that agreement might be.

The sentencing judge is Kathleen O’Connor.

Investigators reported Malmstrom being stabbed 17 times. The wounds included a slashed carotid artery.

Cole's fingerprints and footprints were found in Malmstrom's blood, according to testimony in earlier proceedings.

A mistrial was declared in the first proceedings in People v. Cole, #09-469, after the jury announced it was deadlocked and unable to reach a unanimous verdict.

News outlets reported at the time that the jury has hung, 10-2, with most favoring a guilty verdict.

Some judges now weigh prison costswhen considering sentencing options

2010-09-20T11:11:00.000-07:00

by Tom Nadeau

Missouri judges now have a unique sentencing tool that computes the comparative costs of various sentencing choices at their disposal, the New York Times reports.

They can now more easily weigh that factor in on judgment and sentencing day.

Prosecutors prefer ignorance ...

Missouri is the first state to make such a tool available to judges. The NYT provides an example:

For someone convicted of endangering the welfare of a child, for instance, a judge might now learn that a three-year prison sentence would run more than $37,000 while probation would cost $6,770. A second-degree robber, a judge could be told, would carry a price tag of less than $9,000 for five years of intensive probation, but more than $50,000 for a comparable prison sentence and parole afterward. The bill for a murderer’s 30-year prison term: $504,690.

Legal experts say no other state systematically provides such information to judges, a practice put into effect here last month by the state’s sentencing advisory commission, an appointed board that offers guidance on criminal sentencing.

If they can manipulate the special sentencing algorithm developed for the judges, interested citizens can figure it out for themselves.

California has no such tool, but ought to get one and fast. For one thing, the cost of housing a state prisoner is considerably higher in California than it is in Missouri.

Then, ordinary taxpayers could easily find out just how much all that barroom braggadocio about being "tough on crime" is really costing them.

Of course, as the Times story points out, prosecutors in states other than Missouri would prefer not to make that information generally available. It might cut down on their courthouse swagger and vote-getting campaign claims.

2nd Cole trial slated to start tomorrow

2010-09-20T10:01:00.000-07:00

by Tom Nadeau

The re-trial of suspected killer Todd Allen Cole Jr. is expected to open Tuesday, with a final pre-trial hearing set for 1:30 p.m. today before Yuba County Superior Court Judge Kathleen O’Connor.

Cole is accused of stabbing Scott Malmstrom to death in July 2009 in the victim’s apartment in the 1400 block of North Beale Road, East Linda.

Bloody fingerprints ...

Investigators reported Malmstrom being stabbed 17 times. The wounds included a slashed carotid artery.

Cole's fingerprints and footprints were found in Malmstrom's blood, according to testimony in earlier proceedings.

A mistrial was declared in the first proceedings in People v. Cole, #09-469, after the jury announced it was deadlocked and unable to reach a unanimous verdict.

News outlets reported at the time that the jury has hung, 10-2, with most favoring a guilty verdict.

The jury could have found Cole innocent; or guilty of either voluntary manslaughter, or murder in the second degree.

Deputy District Attorney John Vacek led the prosecution. Cole was represented by Deputy Public Defender Brian Davis.

They will meet in court at 1:30 p.m. for a trial readiness conference and any in limine motions will be heard and considered today.

In limine is Latin for “at the threshold." Before a trial starts, attorneys ask the judge to allow the jury to see or hear certain evidence or testimony deemed favorable to their sides. The judge decides, yea or nay.

FPPC flap causes delay in Leary trial

2010-09-14T16:52:00.000-07:00

by Tom Nadeau

The defense asked for and got Tuesday a postponement of the trial of besieged former Elk Grove City Council member Michael Leary that was to start that day in Sacramento County Superior Court.

Defense attorney William Portanova told the court that the defense needed more time to assess the possible impact of the state Fair Political Practices Commission’s surprise announcement last week that it was looking into allegations that Leary had committed serious violations of campaign finance rules.

Prosecutor Mike Blazina objected, saying that the flap over allegations Leary may have tried to disguise the true purpose of some $10,000 in campaign expenses has been well known for some time and discovery of documents was therefore not really an issue.

Judge Geoffrey A. Goodman decided, however, to reschedule Leary’s trial start date to 8:45 a.m.. Oct. 19, with a trial readiness conference to be held for 1:30 p.m. Oct. 13.

Leary faces four felony counts involving alleged fraud and bribery. He has pleaded innocent to all charges.

Blazina corrected the possible prison term Leary would face if convicted of all counts.

If convicted, Leary’s maximum possible penalty would be four years and four months in state prison. The minimum possible penalty Leary faces would be a period of probation, Blazina said.

The FPPC announcement calls for “a full investigation” into Leary’s allegedly illegal financial activities and, “if found guilty, because of his pattern and practice of unlawful behavior regarding his council seat, that he be punished to the extent of the law.”

The FPPC has asked the Sacramento court to force one of Leary’s business associates to cough up documents pertaining to Leary’s 2008 campaign expenditures
The FPPC is particularly keen to see documents relating to an allegedly fraudulent payment of $10,751.95 from his campaign committee account to the Circle Seven Wine & Liquor store to pay for alcoholic beverages for a campaign event.

The store was owned by Lababedy Hakmat. Hakmat previously had been a co-owner with Leary in another liquor store, “Ernie’s,” in Carmichael.

Lababedy allegedly then used that 10 grand "to facilitate payment, on behalf of Mr. Leary, of rent on a past due lease contract belonging to Mr. Leary's ex-girlfriend," the report said.

Outside the courtroom Tuesday, Leary – obviously miffed at the fresh twist in his legal situation – said the new FPPC wrinkle showed “they” – the other side, his detractors – in his long-running political drama had clearly concluded they were going to lose the criminal trial.

Mercer gets visitors in Yuba jail

2010-09-13T14:41:00.000-07:00

by Tom Nadeau

TMercer3_9-13-10_Mercer-visit

The scene was the visitor waiting room in the lower level of the Sixth Street entrance to the Yuba County Jail. The time was just after 8 p.m. Sunday night. I was there to see Timothy Brian Mercer. It was the first time he was allowed callers.

“You’re about the 10th person asking for him,” the jail deputy said through the plexi-glass barrier.

“You’ll have to get in line,” the deputy added, pointing to a small group seated across the room. They included a mother, Maria Hall, and her two teenage girls, Christina and Katelyn; two men who appeared to be together, and; a third man – an older, baseball-capped dude who sat apart.

Friends stand by him ...

Mercer had been convicted a couple of days earlier of one count of lewd and lascivious behavior with a girl under 14.

The crime had been alleged by a wife with an outside boyfriend. “E” confirmed the allegation, but only after extensive prompting by an investigator.

Mercer vehemently denied the charge and insisted on fighting it out in court.

For more than a year, the prosecutor delayed Mercer getting his day in court by invoking numerous postponements.

When it did come to trial, the judge barred the jury from hearing most of Mercer’s exculpatory defense points by ruling the points inadmissible.

His court-appointed attorney put on a minimal defense. He counseled Mercer to not testify on his own behalf.

Mercer lost.

Mercer is now looking at a sentence that could range from a maximum of eight years in state prison or – if he’s very lucky and enough stink is raised about the questionable verdict and the judge has any compassion left in her prosecution-favoring heart – he could get as little as five years on probation. It all depends.

Either way, he will forevermore have to register annually as a sex offender.

In the meantime, Mercer awaits judgment and sentencing, which is scheduled for 9 a.m. Sept. 27 in Department #5 of the Yuba County Superior Court.

But back to the story.

The door to the jail’s visiting bay is unlocked and the on-duty deputy signals us through. We all go in. The plexi-glassed booth where Mercer is waiting is small and has only one wall phone. The others tell me to go first.

“I’ll be brief.”

I pulled out my notebook and opened it to the page with my points listed.

First I tell him he’s looking OK, which is only partly true.

He looks to be in good spirits, certainly, and he is carrying some official-looking forms. But his orange jail garb is shabby from previous wear and permanently stained.

I ran through my questions: How was he doing? Did the jail doctor see him? Was he getting used to his new environment? Any trouble so far?

Fine. No. Yes. None.

Then I passed on the advice some experienced people had suggested he be told: Get his mandatory appeals papers in as soon as possible. Immediately file for a re-trial. An appeal and a re-trial are different things. The appeal to a higher court is routine and more or less mandatory. A re-trial is less often requested and, if granted, remains in the local court. Few re-trials are granted.

I continued listing the points of advice I’d been asked to convey to Mercer: Try to get as many letters of support from responsible parties filed with the court as soon as possible. Tell these supporters – friends, past employers, ministers, etc. – to make their letters clearly individual and personalized. Don’t use form letters.

The papers Mercer had with him were the appeals request forms he had to fill out.
He said his attorney had claimed not to have any.

“When I told the guard what (the lawyer) had said, he said the forms were available in the jail. He got them for me,” Mercer said.

“Yes, well, I guess ….” What more could be said about news like that?

My five minutes were up and I hung up the wall phone, waving good-bye. Maria and her girls moved forward to see him. I chatted with the two younger men. The old guy in the baseball cap hadn’t entered the visiting area.

The two were Dallas Weiher and Bill Smith.

“Smith?” I repeated, with a dubious, squint-eyed look He’d probably heard the jokey wiseguy insinuation a million times before.

“No, really,” he laughed, good-naturedly.

The two knew Mercer from church.

Weiher said he ran a dry wall business and that he sometimes hired Mercer to help him out. He said he had found Mercer to be a pleasant, trusting guy who would drop everything to go to the aid of others, even at the most inconvenient times.

Meanwhile, in the background, there was a mini-drama playing out at the visiting bay where the mother and daughters were talking with Mercer. The women were crying. Mercer’s consoling words were silenced by the plexi-glass barrier.

None of the women had been in a jail before, they later told me. Now they were there in the institutional scene bare walls, bolted-down stools, orange sweatsuits, plexi-glass separations, other prisoners and families pleading their own troubles into the wall phones.

The mother and girls were obviously overwhelmed by the sheer hopelessness of Mercer’s plight. They broke off and came over to talk to me. Weiher and Smith moved into the tiny booth to talk with Mercer.

The teary mother wore a black boot cast over an injured foot and used a cane. I got the mother’s name and contact numbers.

The younger girl couldn’t stop crying. She said she was going to look for Kleenex. Instead, I gave her one of the several soft Viva paper towels I carried in my vest pockets.

Looking at the woman, the two girls and the two men over at the booth talking to Mercer, I realized I could boil the whole story down into one thematic word: disbelief.

Leary: into each life a little rain must fall

2010-09-12T18:18:00.000-07:00

by Tom Nadeau

Into each life a little rain must fall, which – if one is to judge by former Elk Grove city councilman Michael Leary’s stormy situation – will then be followed by thunder, lightning, high winds, sleet, snow, hail and a longish ice age.

Today, on the eve of his Sacramento County Superior Court trial on fraud charges and shortly after he filed a civil suit alleging his ex-girlfriend and a title company defrauded him of thousands of dollars, Leary now stands accused by the state Fair Political Practices Commission of money-laundering and campaign fraud.

Leary has pleaded innocent to all charges brought in People v. Leary, #09F07685, including bribery.

If convicted, Leary’s maximum possible penalty would be four years and four months in state prison. The minimum possible penalty Leary faces would be a period of probation, Deputy District Attorney Mike Blazina said.

The 50-year-old Leary could also be fined up to $75,000.

It came to light last week that Leary has himself filed a civil countersuit – Leary v. North American Title Company, et al, #34-2010-00085705, claiming his former paramour Alyc Maselli, along with Abby Patneaud, Catherine Picton and others conspired through North American Title Company to defraud him of more than $25,000.

Now, separately, the FPPC has called for “a full investigation” into Leary’s allegedly illegal financial activities and, “if found guilty, because of his pattern and practice of unlawful behavior regarding his council seat, that he be punished to the extent of the law.”

Money, politics, girlfriends ...

The FPPC has asked the Sacramento court to force one of Leary’s business associates to cough up documents pertaining to Leary’s 2008 campaign expenditures.

The FPPC is particularly keen to see documents relating to an allegedly fraudulent payment of $10,751.95 from his campaign committee account to the Circle Seven Wine & Liquor store to pay for alcoholic beverages for a campaign event.

The store was owned by Lababedy Hakmat. Hakmat previously had been a co-owner with Leary in another liquor store, “Ernie’s,” in Carmichael.

Lababedy allegedly then used that 10 grand "to facilitate payment, on behalf of Mr. Leary, of rent on a past due lease contract belonging to Mr. Leary's ex-girlfriend," the report said.

The “ex-girlfriend” referred to was Maselli.

The first complaint in the new report noted that Leary’s campaign statements claimed he had paid more than $10,000 on a mysterious, untraceable “fundraising event.”

Investigators demanded to know, among other things:

-- When and where was this event held
-- Who attended it
-- Why were no other contributions received at the event
-- Why was so much money spent on a city council seat that paid a measly $600 a month, and
-- “If so much alcohol was purchased and then was consumed, did the attendees then drink and drive?”

The second complaint alleged the $10K was actually used to pay “back rent” for Maselli, a sum allegedly accumulated while the couple went through a temporary romantic split in their tumultuous, “on-again, off-again” relationship.

The third complaint against Leary involved a questioned expenditure of $7,000 to one Paul Galindo, who was characterized as a “campaign consultant,” but was, in fact, a mortgage broker.

“Mr. Leary has many real estate investments, investments that he transfers in and out of his name (most to family members) before and after the elections to avoid Statement of Economic Interests disclosure,” the complaint said.

The report states that, Leary, as an elected official “has long crossed the line of not only thumbing his political nose at the law but abuses the public’s trust.”

It goes on to recall that Leary had previously been cited by the Sacramento County Grand Jury for 14 alleged violations of conflict of interest laws and for other actions which the grand jury described as “reprehensible,” “vulgar” and “egregious.”

“We now allege improper or better stated, unlawful, spending of campaign contributions,” the report claimed.

It later states, “(W)e allege that Mr. Leary is not telling the truth.”
The report also objected to Leary’s financial interest in Ernie’s Liquor store, which it said violated a little known law that prohibits law enforcement officers from owning liquor stores.

The report noted that while former Sacramento Sheriff Lou Blanas knew about Leary’s ownership role in Ernie’s liquor store, he did nothing about it.

Mercer convicted; ex-wife smirks; defense attorney declines comment

2010-09-10T12:29:00.000-07:00

by Tom Nadeau

Timothy Brian Mercer, 43, was convicted in Yuba County Superior Court Thursday of one count of lewd and lascivious conduct with a girl under 14.

The jury of six men and six women deliberated for three days. During that time they asked for five read-backs and declared themselves hung three times. It came out at one point that they were split, 8-4.

Each time they declared themselves unable to agree on a verdict, Judge Kathleen R. O’Connor ordered them back to the jury room and to continue deliberating.

The four outsiders were eventually persuaded to change their minds and Mercer was convicted as charged. The verdict was read aloud about 3 p.m.

A woman was told to leave the courtroom when she blurted out her disbelief.

Immediate incarceration ...

O’Connor ordered Mercer immediately incarcerated. He could be sentenced to as many as eight years in state prison. Sentencing was set for 9 a.m. Sept. 29.

Mercer had no previous criminal record other than a drunk-driving arrest nearly 20 years ago. He had never before been accused of misconduct with children, so far as reported.

As Mercer was shackled and led away, Ruth Browning, the 38-year-old ex-wife who had accused him of the crime, departed the courtroom, smirking.

Browning claimed to have peeked into a bedroom in April 2009 and seen Mercer standing over their 9-year-old foster child, “E,” with his hand placed under the child’s bed covers.

Within days of the alleged incident, Browning temporarily removed “E” and an adopted daughter, 7-year-old “S,” from the home and went to the police.

While Mercer awaited trial, Browning divorced him, took possession of their Marysville home and remarried. Mercer has since resided in a Yuba City motel room.

Prosecutor Melanie Kamber Bendorf delayed bringing People v. Timothy B. Mercer, #09-281 to trial by asking for – and getting – some 42 postponements in related proceedings in Superior Court and Family Law Court.

It took some 15 months for Mercer’s case to reach trial. He never requested any continuances, Mercer told NT.

Numerous evidentiary and procedural rulings by O’Connor worked to Mercer’s disadvantage.

Informed observers who followed Mercer’s case closely have expressed wonderment – nay, amazement – at some of defense attorney Chad Cameron Couchot’s advice and decisions on strategy and procedure.

Mercer said that whenever he questioned tactics and procedure, or made alternative suggestions, he was advised to keep quiet and, in effect, go with the flow.

Couchot declined comment after the verdict hearing.

Bendorf was absent from the verdict reading. She was reportedly on some sort of vacation.

Long-awaited Leary trial goes Tuesday

2010-09-08T20:50:00.000-07:00

by Tom Nadeau

The Sacramento District Attorney and Michael Patrick Leary. were in Superior Court Wednesday to confirm that Leary’s criminal trial will proceed Tuesday as planned.

The appearance is set for 8:45 a.m. in Dept. #9 where a judge will assign a courtroom to hear the matter of People v. Leary, #09F07685.

It may take a day or two to pick a jury and the trial itself could last three to four days, defense attorney William Portanova estimated.

Leary, a former Elk Grove City Council member and Sacramento County Sheriff’s Department lieutenant, is charged with four criminal counts arising from a real estate dispute with his former live-in girlfriend, Alyc Maselli.

Maselli and the district attorney allege that Leary bilked her out of her share of a $610,000 home at 3301 Marina Cove Circle, Elk Grove.

Leary has pleaded innocent to all charges. If convicted, he could face 12 years in state prison and a fine of up to $75,000. In the meantime, he remains free on bail.

Leary has separately filed a civil counter suit claiming Maselli and ring of women notary executives have joined together to defraud him through an improper title transfer.

He filed the suit in propria persona, that is to say, on his own lonesome, rather that through an attorney.

Portanova skirted comment on Leary’s civil suit, saying his law office was not involved in the matter. It is unclear what, if any, impact this civil suit might have on Leary’s criminal proceedings.

The civil suit – Leary v. North American Title Company, et al, case #34-2010-00085705, claims that Maselli along with Abby Patneaud, Catherine Picton and “Does 1 through 15” conspired through North American Title Company to defraud him of an unspecified amount in excess of $25,000.

Leary was in court Wednesday, but left without commenting to the press.

Jury still out on Mercer verdict

2010-09-08T05:06:00.000-07:00

by Tom Nadeau

The Yuba County jury is still out on whether Timothy Brian Mercer, 43, touched a foster child with “lewd and lascivious” intentions.

The deliberations come amid one of the Yuba County District Attorney’s more dubious prosecutions launched some 17 months based on suspicions raised by a wife with questionable motives and a Child Protective Services willing to act on them.

Mercer, a Marysville resident, is officially charged with one count of California Penal Code section 288(a), aka, “lewd and lascivious,” based on allegations leveled in April of 2009 by his now former wife, currently known as Ruth Browning.

People v. Mercer object of scrutiny ...

According to Browning, 38, she observed him standing over 9-year-old “E” sometime around with his hand under the child’s bed covers. Within a few days of the alleged incident, the wife had removed “E” and an adopted daughter, “S”, aged seven, from the home and initiated divorce proceedings.

No similar incidents were ever reported against Mercer. He has no prior criminal record other than an arrest for drunk driving in the early 1990s. If convicted he could be sentenced to state prison for up to eight years.

While the charges were filed more than a year ago, the prosecution has dodged bringing the case to trial by asking for and getting some 42 postponements in proceedings against Mercer in both Superior Court and Family Law Court.

Mercer said he has never asked for a continuance.

The prosecutor is Deputy District Attorney Melanie Kamber Bendorf. The defense attorney is Chad Cameron Couchot.

Mercer was initially held or $100,000 bail, but after some time it was negotiated down to $25,000 and he has remained free on bond pending trial.

Mercer’s case has been followed by persons concerned about Child Protective Services alleged abuses of power. Among the interested observers is Kay Coke of the National Foster Parent Coalition for Allegation Reform (NFPCAP).

Notable Trials will have a more detailed report on the Mercer case after the jury of six men and six women reaches a verdict, or declares itself hung.

The jury went out Tuesday to debate the main charge and several lesser charge options, only to send word out to Judge Kathleen O’Connor about 2:30 p.m. that afternoon that they were split.

O’Connor called them back and read a prescribed admonition to remain polite to each other but try harder to come to a decision. The jury went back out and debated more until about 4:15 p.m. when they summoned the bailiff to tell him they wanted to go home for the night.

They will resume deliberations at 9:30 a.m. today.

A day in a defense attorney's life

2010-09-03T10:10:00.000-07:00

Tom Nadeau

It is 8 a.m. Monday, judgment and sentencing day in Yuba County.

Geoffrey Burton Wander, “first conflict defense attorney” (another way of saying “alternate public defender”) arrives at his office just up C Street from the courthouse. He is wearing a white Panama hat and toting a pet carrier inside of which a rat races around trying to get out.

Let’s see: judgment day; lawyer in suit; rat trying to escape a cage. The sun’s barely over the Sierra and the day’s symbolism is already piling up.

Wander opens the cage and the rat inside, Cutie-Pie, is instantly out. The little gray bugger scurries around receptionist Elizabeth Halverson’s desk and … up my arm!

“She’s friendly,’ Halverson reassures me.

After the rat and the reporter are disengaged, we retire to Wander’s inner office. He fingers through his message slips; returns a few calls.

This is a good time to explain the deal Wander and I had: if he’d let me follow him around on a typical courthouse work day, I’d promise not to reveal any of his clients’ names, or any identifying details of their cases.

Credentials on the wall ...

While waiting, I scan the 14-foot ceilings in the 19th century Marysville mansion housing several barristers’ digs, then at the walls.

Wander’s many credentials displayed on the walls are, well, eclectic.

There’s a BA and an MA in Theater Arts from California State University, Humboldt; a law degree from Cal Northern School of Law, Chico; certificates of admission to plead in US courts, Eastern District, Sacramento as well as in the California Supreme Court.

There are other official-looking documents to prove he holds a doctorate of divinity in the Universal Life Church. That means he can marry people just as legally as any priest or minister and he has done so many times over the years,

To date, the Rev. Geoff, 43, has sanctified more than 40 weddings, only a couple of which couplings have ended in divorce – a record of permanence “better than most ministers can claim.”

On one wall is a painting of a World War II Mustang P-51 fighter plane.

It turns out Wander has been an avid pilot since his youth. These days, he’s gravitating to gliders.

Propped up on a bookcase was an over-sized, light-colored wooden baton or billy club.

“It’s white ash. I made it for a play at Humboldt,” Wander said.

When the last curtain falls on a show, stage actors like to keep some small souvenir of the part they played.

As a newspaper theater critic I have Wander’s acting in Yuba College Theatre’s version of “Translations” and The Acting Company’s production of Neil Simon’s “The Odd Couple.”

He played Oscar in “The Odd Couple.” I gave him and his co-players the good review they earned.

With the fine performances they delivered in The Acting Company’s current production of “The Odd Couple,” the eight local players in this classic Neil Simon comedy can now count themselves among the stars.

Geoffrey Wander and Joseph P. Stottmann, who play Oscar and Felix, respectively, are now joined forever with the likes of Walter Matthau, Art Carney, Jack Klugman, Tony Randall and Jack Lemmon, all of whom who have headlined Broadway productions of “The Odd Couple” going backs to its premiere in 1965.

And speaking of celebrities

Also gracing one of Wander’s law office walls is a photo of him and Kato Kaelin, of O.J. Simpson trial fame.

“I was outside a restaurant reading a magazine when he came out. I’d listened to the trial on radio. When I heard his voice, I just looked up and said, ‘Kato!’”

Wander shares offices with attorney Donald Wahlberg Jr. Both serve as conflict attorneys. Another attorney, James “Jimmy” Vasquez, frequently drops by.

As the clock creeps up on 8:30 a.m., it is time to walk over to the courthouse, half a block away. Through the x-ray machines we go and up to the second floor and Room 211.

“Two eleven,” I noted. “That’s robbery, isn’t it?” The ironies mount.

The cubbyhole room was seldom used until Wander talked the court managers to let attorneys have it. He furnished it with his extra chairs, desk and bookcase. It now features a computer with online access to legal research sites.

Wander removed his Panama and made straight for Department #3.

Visiting judge in town

Judge Julie Scrogin usually presides there, but she was absent that day. A visiting judge who looks and sounds like actress Frances Sternhagen, now playing Deputy Chief Brenda Johnson’s mother in “The Closer,” but best remembered, perhaps, as Esther Clavin, mother of Cheers mailman Cliff Clavin (played by John Ratzenberger).

Her Visitorship was later identified as retired Butte County Superior Court Judge Ann Rutherford.

Dept. #3 is SRO – standing room only. The bailiff recites his ritual invocation: “Come in. Find a seat. If you can’t find a seat, you’ll have to wait in the hall.”

The no-nonsense Rutherford will have none of that. She wants to make a one-time general announcement to everyone assembled. She instructs the bailiff to tell the standees to take a seat in the empty jury box.

Wander rounds up clients

While this is going on, Wander passes through the bar to pick up his morning caseload. It’s light, just three not particularly fat files. All charges are misdemeanors

He flips quickly through the files and calls out the clients’ names; gestures for them to meet him in the hall. They gather and follow him down to room 211.

The first of the three clients is a young black kid – 18, 19, maybe. He is thin, good-looking, intelligent, somewhat distracted, a bit nervous. He constantly fingers his hair and one of the discreet stud earrings he is wearing.

Wander has scanned his case. He lays out how the kid’s court schedule will likely play out. The boy nods he understands. Dates are predicted. The accused leaves.

In hurries a tall, skinny dude, probably somewhere in his late 30s. He has black hair and mustache. His hands are constantly moving. His long fingers are stiff, unbending. He’s more than nervous. He’s wired.

Instead of talking about the charges against him, he complains to Wander about him and his fiancée-girlfriend-wife-whatever being 86’d from the motel room they were renting while the real culprits, dopers in an adjacent room, were not.

Client #2’s tale was shaping into what San Francisco defense lawyers call a “two-dude defense.”

Basically, the client protests his personal innocence, claiming instead that, “It wasn’t me. It was this other dude.”

Wander brushes off the motel problem and gets back to the charges in hand. They get their court dates arranged.

Client #3 is entirely different. Blondish, a little facial hair, quiet and clear-headed, he and Wander have their act together in a few moments. He leaves.

“I wish they were all like him,” Wander sighs on our way out.

Back in court

Back in court, Wander stands up with his clients as Rutherford calls their cases. When the black kid goes up, it is to join two other defendants against whom separate, but apparently linked, charges are pending. Their alleged offenses are more serious.

Oh-oh! This kid’s case may be more complicated than I thought.

Rutherford calendars other dates for “Two-dude” and “Blondie” to return. Wander is finished for the morning.

“I told you it was light,” he reminded.

Around the courthouse and up and down the street everyone seems to know Wander. On our way to get a cup of coffee, most passersby – other lawyers, a few court clerks – all greet Wander with a smile. He’s got that sort of amiable personality.

Back in his office Wahlberg and Vasquez poke their heads into Wander’s inner sanctum. The visitors exchange tidbits about their calendars and client calls and then go on their ways.

Gun talk

Wander talks about guns. He owns several and knows a lot about them. His current project is to build his own AR-15 from separate parts purchased online.

The complete store-bought version of the AR-15 can cost in the neighborhood of $1,300, Wander explains. Bought online piece-by-piece, he can assemble one at home to his own specifications for hundreds of dollars less.

Wander expands on the benefits of such homemade devices. For instance, they would make the Perfect Murder Weapon. The barrel that leaves the tattletale rifling marks on the killer bullet can be easily replaced by another.

“You can also get rid of the firing pin, which leaves another distinguishing mark,” Wander added.

It turns out that Wander is quite a marksman. He recalls how, while at Humboldt College in Arcata, Calif., he volunteered as a range master at a nearby rifle range.

One day a group of hunter marksmen showed up to calibrate their many rifles and high-powered scopes before setting off on a multi-week hunting trip around Canada and the US.

Wander had with him his own 1918 Spanish Mauser, a plain Jane weapon with no fancy sights.

The friendly guy-talk eventually got around to the hunters pointing out to a target 700 yards out and asking Wander, “D’you think you can hit that?”

The target was about the size of a tin lid on a half gallon jar.

Wander, a natural shooter with a sharp eye five out of five rounds into the target, with the last four closely centered.

The old men left, shaking their heads.

Before we broke for lunch, Wander learned he had to confer with a client in custody at the county jail.

“We’ll go when we get back at 1:30,” he said.

Piece of cake

I was back at 1 o’clock. He came back carrying a large white box. It contained a peach pie he had just baked.

Yes, besides being a lawyer, an actor, a pilot and a marksman and hunter, Wander is also a crackerjack car mechanic, a skilled carpenter-woodworker-set designer and a top-shelf chef.

Did I mention he grew up on a farm in Meridian, Calif. where he drove the trucks and tractors?

Wander called down to the jail to say he’d like to meet with a client incarcerated therein.

On the way to the receiving station, we ran into a jail deputy coming off duty and heading home. Wander tossed off a mild pleasantry about the deputy’s vehicle. Laughs were exchanged.

A few steps later Wander explained: “He loves his cars. He’s very proud of them and keeps them up.”

'In the jailhouse now'

Wander had wanted to meet his client in what’s called a “pass-through” – an open room where lawyers and clients can easily exchange documents. For whatever reason that was not possible that day.

Instead, we entered a small booth separated from another small booth by a plexi-glass barrier. Attorney and client conversed through phone sets. I could hear Wander well enough, but could only watch the client’s lips move.

The client appeared to be in his early 30s. He was garbed in jailhouse orange sweats. He seemed nice enough.

“You got a haircut,” Wander remarked.

The prisoner grinned, nodded. He then looked at me.

“He’s a reporter following me around for the day. No problem,” Wander explained.

The prisoner looked at me again; smiled. His lips moved. I returned the smile and spoke few words he could not possibly hear. Then they got back to business.

Wander asked the prisoner how he was faring. Laid out the next few steps the legal process would require him to take before his trial came up a month or so later.

“I probably won’t be back to see you until just before trial,” Wander told the prisoner. More smiles back and forth.

We left.

How he got his start

My day of following a typical defense attorney on a typical day was coming to a close. One question lingered.

“How did you come to be a defense attorney?” I asked. There was, of course, a story behind it.

Wander had always wanted to be a prosecutor. But something happened. It was like this.

Students from Yuba City High School were at a nearby convenience store. One of the boys thought it would be great prank to sneak three rolls of Rolos into the backpack of the kid destined to become Wander’s mission-changing client.

As the story goes, an untrained store security guard was tipped off that he might find something interesting if he inspected the kid’s backpack. So the guard accosted the kid, demanding he fork over his kit.

The kid objected. He wanted to know what was going on. The Vietnam veteran suddenly guard grabbed the boy by his backpack straps and shook him.

The kid resisted, eventually forcing the guard onto the ground. About that time the East Indian store owner intervened, clobbering the kid with some foreign object, which really pissed the kid off. He punched the East Indian in the face, knocking out a couple of teeth.

There were plenty of witnesses to all this. A couple of girls calmed the kid down. The cops came and, sure enough, by the time they were done writing the incident report, it sounded like the official version of the St. Valentine’s Day massacre.

The clean-living teenager who didn’t steal the Rolos was now facing several possible felonies convictions and some serious Hard Time.

Wander accepted the case; conducted extensive interviews; took down lengthy statements, all of which seemed to corroborate the kid’s version of the events.

In the end, Wander managed to wangle the whole thing down to something that more accurately reflected what had actually happened when that practical joke went wrong. As a result, the kid got a fair verdict carrying a reasonable penalty.

Wander has been a defense attorney ever since.

Oh, and by the way, the peach pie was terrific; the crust something for Betty Crocker (were she real) to die for.

Vacant federal judgeships abound

2010-08-31T13:16:00.001-07:00

Almost one in eight federal judgeships is vacant in the country and legal scholars warn that the increasingly politicized confirmation process threatens the administration of justice across the nation.
[...]
Of the 102 federal judgeships open, there are nominees pending for 39 seats ... Read more >

Griesa sentenced: short jail term,lifetime registration as a sex offender

2010-08-30T06:13:00.000-07:00

by Tom Nadeau

Former tow truck firm owner Joseph Griesa was sentenced in Yuba County Superior Court Friday to 270 days in jail and five years on probation for being convicted of 10 criminal counts involving sex with a minor girl and payroll tax violations.

The toughest penalty visiting Judge Ersel Edwards imposed on the 45-yer-old Griesa was compelling him to register as a convicted sex offender annually for the rest of his life.

Griesa must also stay away any minors and schools, although Edwards did allow one exception that permits him to transport his own children to and from school.

Edwards also levied a lengthy roster of fines and fees against the convicted felon.

Sacramento defense attorney Kenneth Rosenfeld asked that Griesa be allowed to serve his jail term on a work-furlough status. That would allow him to go leave jail every day to go to work, but would have to return to the jail to spend the night.

Edwards left it up to the jail commander whether to permit that.

Little hard time, but not so easy, either ...

Some in the crowded gallery thought Griesa got off easy.

Edwards responded by saying the sentencing guidelines were limited by the terms of Griesa’s negotiated settlement with the prosecution.

Edwards admonished Griesa, saying the sentence he did get should make it “absolutely clear” to him that his past conduct with “young women who depended on you … was reprehensible.”

Edwards granted a defense request that Griesa temporarily remain free in order to tie up some personal business before reporting to the jail at 8 a.m. Sept. 14.

The most poignant moments in the sentencing hearing came during victim “SA’s” public statement to the judge and the crowded courtroom.

Attendees included many supporters of Jesse Santana, one of the attorneys impacted by Griesa’s bitterly challenged testimony in the related matter of People v. Santana, Vasquez.

SA’s lengthy statement came through a steady flow of tears, with a male aide from the Victims-witness program standing close by.

She appeared to be as angry with the District Attorney’s Office handling of Griesa’s prosecution as she was with Griesa for what he had done to her.

SA first described how Griesa’s actions had affected her life and, she said, continues to do so.

“I wish every day this is a nightmare (that will end), but it’s not … “I live in fear what the defendant might do to me,” she said

SA recounted how Griesa had told her during one of his sexual advances that “He’d hit me if I disobeyed … (and that) “One time he wanted oral sex and I refused and he struck me in the face.”

She also said she “felt the district attorney never wanted to hold him (Griesa) accountable,” she said.

A woman who appeared to be Griesa’s wife sat just behind him in the public gallery. He turned to her, eyes cast down, and they held hands over the bar separating the gallery from the court bay while the embarrassing details poured out of the teary SA.

This sentencing does not end Griesa’s parade of legal problems.

He has filed a malpractice lawsuit in Sutter County against Redwood City attorney Charles “Chuck” Smith, one of four lawyers who have represented him throughout this tacky soap opera.

A woman claiming to be another victim of Griesa’s sexual practices has reportedly filed a civil complaint against him in Sutter County seeking millions in damages.

In an entirely unrelated matter, another Sutter County woman, Jaspreet Kaur, has filed a $100,000 damages complaint against him. That legal dispute arises from a March 14 auto accident.

Finally, while the sentence may seem light to some, persons familiar with the probation requirements imposed on Griesa, say they can be very difficult to abide by flawlessly for five years.

Should he violate, Griesa could be carted off to state prison to serve the three-year term that was suspended pending his successful completion of probation.

Details in the probation requirements for a sex-with-a-minor convict often dictate what neighborhoods they can live in and whether they can attend a movie without an adult escort.

Then, too, there are all those unscheduled, unannounced home inspections probation officers can periodically demand.

No dirty dishes in the sink for this guy for the next five years.

Judge Darlington denies all motions;Santana, Vasquez goes to trial, maybe

2010-08-29T09:44:00.000-07:00

by Tom Nadeau

Visiting Judge John Darlington denied Friday all defense and prosecution motions to reconsider his previous rulings in the Yuba County felony matter of People v. Santana, Vasquez, CRF-#08-825.

Neither side was happy with his ruling. Each indicated they would, “take it to a higher court,” as the saying goes.

In early August, Darlington granted some – but not all – of the motions attorneys Jesse Santana and David Vasquez had made seeking dismissal of charges they had violated rules of law and ethics while negotiating a settlement between boss-sex attacker Joseph Griesa and his employee-victim, “S.A.”

Griesa was sentenced later the same day in that criminal case by a different judge.

The Santana, Vasquez proceedings Friday allowed the lawyers one last chance to persuade Darlington to revise his earlier decisions.

Darlington listened, but after a 20-minute recess, returned to say nothing the lawyers had said changed his mind. The two must stand trial.

If and when, maybe, possibly ...

If and when this case ever does go to trial – not a sure thing despite this ruling – Vasquez would face three criminal counts, the most serious being bribery. Santana would face two ethics-related counts.

Defense attorney Michael Barrette said the indicted attorneys would meet a two-week deadline for filing a writ of mandamus asking the state’s Third District Court of Appeals to negate Darlington’s rulings.

Lead prosecutor Supervising Deputy State Attorney General Michael Canzoneri declined comment, but indicated the prosecution will also ask the 3rd DCA for further action.

Darlington’s decision means this landmark case can finally go before a public jury after more than two years of closed grand jury proceedings and pre-trial preliminary hearings – in theory, anyway.

But both sides still have a battery of options left to them that could keep this legal beast – one Darlington has called “the Moby Dick” of criminal cases – alive and kicking around county, state and federal trial and appeals courts for years to come.

The defense has until Sept. 10 to file their writ. The prosecution has a short deadline after that to reply. The appeals justices at the 3rd DCA are likely to rule on the writ within 90 days, Barrette said.

Santana and Vasquez are scheduled to return to court 1 p.m. Oct. 1 to enter their official pleas. Despite two years of hearings, they have yet to be actually arraigned in this mammoth case. A calendar of pre-trial hearings will also be set that day.

When the appeals justices get the writs, they will have several options.

They could refuse to consider them. That would return everything back down to the Yuba County Superior Court for further action. Or, the justices could take the issues raised in the writs under advisement and render a decision on them. Meantime, any actions on the county level would be put on hold until the 3rd DCA justices ruled.

Looking at the possible twists and turns People v. Santana, Vasquez could face as it wends its way through the various state and federal district courts it is entirely conceivable that it might ultimately make it all the way up to the US Supreme Court.

Not many legal cases get that far. But this ostensibly obscure Yuba County legal dispute calls into question some a number of basic bedrock rights, customs and procedures long embedded in the US legal system, so it could very well get all the way up there.

Legal questions raised include:

-- How much must a client tell his or her lawyer when seeking advice?
-- How often must a lawyer remind a client of all possible consequences decisions entail?
-- If a client, attorney and the judge are fully aware of what’s going on, who is gets to be the goose if and when an error is alleged or discovered?
-- Is it the first to realize it, or the first to be told about it, or the last to hear of it?

People v. Santana, Vasquez is further complicated by the courthouse politics that lurk behind it. Everyone knows about it; but few dare talk about it. Jobs, careers and reputations hinge on the outcome.

Here is the background, briefly.

A prominent defense attorney in the equally prominent firm of Beauchamp an Santana, Santana was in the running for a judgeship on the Sutter County Superior Court bench. His personal and long professional record were sterling, unassailable. He was even Hispanic. The Governor’s pen was practically poised to ink Santana’s appointment.

But forces within the Sutter County District Attorney’s Office had other ideas. Their preferred candidate for the judgeship was a relatively young prosecutor. DAs like to have prosecutors not defenders ruling on the cases.

Somehow, Santana’s appointment had to be derailed. A useful tool was found. Too bad Vasquez had to go down with him. But, as they might say in a similar Sicilian organization: “Bidness is bidness.”

Suddenly, a district attorney across the Feather River discovered something to talk to the Yuba County Grand Jury about. The tool was unsheathed. Joseph Griesa testified behind closed doors; no rebuttals allowed.

Griesa had been linked for many to law enforcement in both counties. At the time he had an investigation pending against him relating to allegations made by some of the female employees at his tow truck company. One of the employees was “S.A.” She went to Santana for help.

Several charges against Griesa were waiting in the wings. Some were state. Some were federal All could be magnified or minimized, pursued or postponed.

Griesa and at least one of his several attorneys have claimed he was led to believe things might go easier for him if he told the Yuba County grand jury he felt pressured to cough up a financial settlement with “S.A.” He testified to the grand jury, twice.

Abracadabra! Grand jury indictments suddenly materialized against Santana and Vasquez and the governor appointed the golden girl prosecutor to the Sutter County bench.

All the two district attorneys had left to do now was ignore Santana and Vasquez until they went away – either by cutting a relatively painless plea deal, or simply vanishing from the docket, the quieter, the better.

But the various prosecutors’ preferred outcomes were not to be and the epic case of People v. Santana, Vasquez was launched.

Leary countersues in continuingromance, real estate, crime drama

2010-08-26T23:35:00.001-07:00

by Tom Nadeau

Former Elk Grove City Council member Michael Leary has filed a civil lawsuit claiming a cabal of women notary executives cheated him of thousands of dollars through an improper transfer of title.

In the suit filed Aug. 18 in Sacramento County Superior Court, Leary alleges that Abby Patneaud, Catherine Picton, Alyce Maselli and “Does 1 through 15” conspired via North American Title Company to defraud him of an unspecified amount in excess of $25,000.

Leary is currently facing a criminal trial on four charges he defrauded Maselli of an unspecified amount in a disputed transfer of title for a residence at 3301 Marina Cove Circle, Elk Grove valued at $610,000.

Leary was arraigned in October 2009 on charges of grand theft fraud and forgery related to the title transfer between himself and his former girlfriend Maselli in 2006. The trial in People v. Leary, #09F07685 is now slated to start Sept. 14.

If convicted in that case, Leary could be sentenced to as many as 12 years in state prison and fined up to $75,000. He currently remains free on bail.

This new civil lawsuit, Michael Leary v. North American Title Company et al, case #34-2010-00085705,was filed in propria persona, or “in pro per,” as courthouse slang would have it.

That simply means Leary filed the civil complaint as an individual acting on his own behalf without the benefit – or the expense – of an attorney.

What the suit claims ...

The suit claims that “One or about Aug. 23, 2005 Defendant Patneaud, a licensed notary public employed by NATC to provide notary services and acting as an agent for Defendant Maselli, owed Plaintiff a duty of care and failed to exercise reasonable care in provision of notary services provided in connection with certain documents associated with the sale of real property in the city of Elk Grove, to wit Defendant Patneaud, acting in concert with Defendant Maselli, knowingly notarized a deed that fraudulently conveyed an interest in Plaintiff’s property from Plaintiff to Defendant Maselli” and that “NATC is vicariously responsible for the actions of its employees who commit negligent actions within the scope of their employment.”

The cause of action goes on to say that, “Further, Plaintiff alleges that Defendants’ negligent conduct in this matter was the product of oppression, fraud, and malice warranting an award of exemplary damages….”

The six-page complaint cites “Does 6 through 11” as “agents or employees of other named defendants.”

“Does 12 through 15” are described as “persons whose capacities are unknown to the plaintiff, “ i.e., Leary.

Naming NATC as a defendant would add the corporation’s deeper pockets to the general mix.

The causes of action are listed as “general negligence” and “other” on the grounds because Leary suffered “wage loss,” “general damage” and loss of earning capacity” as the result of the defendants’ actions.

Leary was let go or resigned from his position as a lieutenant with the Sacramento Sheriff’s Department when news broke that he was being arrested and charged with criminal offenses. He had been with the department for 29 years.

This new civil filing could be interpreted as an attempt by Leary to re-orient the plotline of this long-running drama of love, money and politics from one of “her and the DA versus him” to one of “him versus her and her employer and co-workers.”

The Sacramento County District Attorney’s initial arrest document in the four-count criminal case against Leary lists Patneaud as “original notary” in the challenged deal and Picton as “original escrow officer.”

The same document listed the value of the property in question as $608,000 as of Jan. 27, 2006 with an original deed of trust recorded with the original purchasing grant deed in the amount of $354,500.

This court filing came to the attention of Elk Grove News late Thursday night, too late to contact Leary or other parties for their comments, if any.

Special note: the spellings of Maselli’s first name vary, “Alyc” and “Alyce.” They are given here as they appear in the documents cited.

Moore faces stiff sentencing options following his conviction of assault

2010-08-26T18:04:00.000-07:00

By Tom Nadeau

A Yuba County jury convicted James Archie Eugene Moore Jr. Thursday of two counts of assault with a deadly weapon, to wit: a two-by-four and his foot.

When he returns for sentencing 9 a.m. Sept. 27, Judge Kathleen O’Connor has several options to choose from, because Moore decided not to fight the inclusion of his two prior felony convictions as sentencing factors.

O’Connor’s interpretation and imposition of sentencing options could put Moore in state prison a minimum of eight years, defense attorney, Geoffrey Wander explained.

The nine-woman, three-man jury’s verdict came after one day of trial, an hour or so of hours of closing arguments and about four hours of sequestered deliberation in the matter of People v. James A.E. Moore Jr., case #F-10-184.

The prosecution alleged Moore knocked a man unconscious with a board and then kicked him when he was down.

The jury did not precisely follow the written instructions for correctly filling out verdict forms and they were told to retire again until they had the paperwork properly done.

Guilty, but not of great bodily harm ...

The jury found him guilty of assault with a deadly weapon, but rejected the allegation that his beating of another man resulted in great bodily harm

Moore – a tall, bearded, robust man about 30 years old – cried briefly after the jury left.

The trial had been bifurcated into two parts. The jury would determine guilt or innocence in the first part. Whether the consequences of his two prior convictions would be levied would be decided in a second part of the trial.

Moore’s two previous "strikable" felony convictions derive from previous convictions. They include a March 2009 conviction for burglary in Sutter County, a previous grand theft conviction in November 2006 and for auto theft in June 2003, O’Connor recited in court.

Moore had the legal option of having the jury decide whether to impose the additional sentences, or leave it to O’Connor. He chose O’Connor. The jury was dismissed.

During the space of time when the jury had retired again to correct the filled-out forms, there was some whispered speculation in the courtroom as to what, exactly, the jury was striving to say with their verdict.

Some thought it look like they were looking to take a middle road by reducing the seriousness of the verdict, but – in the end – it was clear they had more or less opted for the tougher outcome.

The successful prosecutor in the case was Deputy District Attorney Michael A. Byrne.

Wander said there might be possible grounds for appeal, in part because of the scant evidence the prosecution presented.

Leary trial reset for Sept. 14

2010-08-25T18:45:00.001-07:00

by Tom Nadeau

The trial of former Sacramento County sheriff’s Lt. Michael P. Leary’s was again postponed by Sacramento County Superior Court judge Wednesday.

Pleading “scheduling problems,” prosecution and defense attorneys joined in asking Judge Gary Ransom to put the trial off until Sept. 14. Another pre-trial meeting will be held Sept. 8.

Both Deputy District Attorney Michael Blazina and defense attorney William Portanova said negotiations between the two sides were not a factor in the request for a delay.

However, each would not discount the possibility that some sort of out of court resolution to the long-running case might be reached.

Love, loot lost ...

The 49-year-old Leary is charged with four fraud-related counts, all of which stem from a property transfer dispute connected with a challenged transfer of title for a $610,000 residence at 3301 Marina Cove Circle, Elk Grove.

Leary was arraigned in October 2009 on charges of grand theft fraud and forgery related to the title transfer between himself and his former girlfriend Alyc K. Maselli in 2006.

If convicted in People v. Leary, #09F07685, Leary is looking at a possible 12 years in state prison and a fine of up to $75,000. He currently remains free on bail.

A 27-year veteran of the sheriff’s department, Leary resigned from a high-ranking post when he was arrested. Leary was also an Elk Grove city councilman for several years. He was an Elk Grove community services director before that.
He and Maselli were reportedly planning marriage, but their dreams of bliss seemingly dissolved during a 2008 banking dispute, documents indicate.

Leary’s attorney, William Portanova of Sacramento, has characterized the couple’s present mise-en-scène as the sort of unfortunate misunderstanding that can crop up when coup-les try to manage their own division of property during a marital break-up without a lawyer.

Leary hearing today likely last before trial

2010-08-25T05:54:00.000-07:00

by Tom Nadeau

Former Sacramento County sheriff’s Lt. Michael P. Leary’s last last pre-trial hearing is set for 1:30 p.m. today in Sacramento County Superior Court.

He has pleaded innocent to all of the four felony fraud charges authorities have brought against him.

His trial is currently expected to start at 8:30 a.m. Sept. 8 in the court’s Department #9.

Several times the defense has hinted an eleventh-hour settlement might be in the offing, but, as pre-trial hearings dragged out over months of delays, none materialized.

However, Elk Grove News will be on the scene today and will report if a settlement is announced.

Love, loot lost ...

The crimes the 49-year-old Leary is charged with all stem from a property transfer dispute. They spring from a challenged transfer of title for a $610,000 residence at 3301 Marina Cove Circle, Elk Grove.

Leary was booked and arraigned in October 2009 on charges of grand theft fraud and forgery related to the title transfer between himself and his former live-in girlfriend Alyc K. Maselli in 2006.

If convicted in People v. Leary, #09F07685, Leary is looking at a possible 12 years in state prison and a fine of up to $75,000. He currently remains free on bail.

A 27-year veteran of the sheriff’s department, Leary resigned from a high-ranking post when he was arrested. Leary was also an Elk Grove city councilman for several years. He was an Elk Grove community services director before that.

He and Maselli were reportedly planning marriage, but their dreams of bliss seemingly dissolved during a 2008 banking dispute, documents indicate.

Leary’s attorney, William Portanova of Sacramento, has characterized the couple’s present mise-en-scène as the sort of unfortunate misunderstanding that can crop up when coup-les try to manage their own division of property during a marital break-up without a lawyer.

Simlick preliminary hearing to go Sept. 8

2010-08-19T12:55:00.000-07:00

by Sam Pierce

A Sutter County judge set a preliminary hearing Wednesday into charges Joseph Hayden Simlick falsely imprisoned a girl and then caused her parents to be burned to death in a fire at their Sutter home July 29.

Superior Court Judge Chris Chandler scheduled the hearing for 1:30 p.m. Sept. 8. Meantime, Simlick, 21, of Rio Linda, remains held without bail at the Sutter County Jail.

People v. Simlick, cases #10-1786 and #10-1787 charge Simlick with special circumstances murder in the deaths of Jack and Susan Martin, both 46, and with false imprisonment for holding their daughter elsewhere against her wishes.

As so far disclosed by law enforcement, Simlick held the Martin’s youngest daughter for some five days prior to the parents’ deaths.

Simlick has pleaded innocent to all charges.

If convicted of the murders, Simlick could be sentenced to death or life in prison with no possibility of parole.

Courtroom packed again ...

Chandler’s courtroom, Department #1 upstairs at the Sutter County courthouse on Second St., Yuba City, was again packed with spectators, many from Simlick's family and the victims' families.

The hearing was held under heavy security, with eight lawmen – bailiffs, transport deputies and detectives – guarding Simlick and ringing spectators in the public gallery. That would be about half the security force displayed at the arraignment hearing.

Defense attorney Linda Parisi, of Sacramento, said Wednesday that she has been retained to represent Simlick – an issue that remained unresolved at the end of the arraignment.

Parisi also asked Chandler to rule that the press and public not be given access to documents or other evidentiary materials related to the case before the defense had first viewed it.

Chandler so ruled.

with Tom Nadeau

'LM' mental health assessment ordered by Yuba County judge

2010-08-19T08:28:00.000-07:00

by Tom Nadeau

A new felony case filed in Yuba County Superior Court is disturbing in several ways.

The defendant in People v. “L.M.”, case #F-10-358 -- (full name withheld due to of the nature of the still-pending case*) – is charged with two counts of Penal Code section 288(a), lewd and lascivious acts against a child under 14 sometime between January, 2010 and May 2010.

Judge Debra L. Givens Wednesday ordered further proceedings be delayed pending the defendant’s assessment by two mental health experts.

The defendant was arrested and charged in early August, with the case filed in Superior Court Aug. 5.

A relatively rare case ...

In the defendants’ initial appearance before Judge Julia Scrogin, the judge read a portion of the police report and district attorney documents aloud in court. The portion read indicated that the age of the alleged victim – “E.C.” – might have been less than five years old.

Furthermore, the indicting document states that the victim was born in July 2005. The victim's sex was not disclosed.

PC Section 288(a) specifically reads that the act would have been committed “with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of the said defendant or said child.”

The alleged acts involved the defendant’s breasts and “orally copulating the defendant.”

What makes this sad situation particularly disturbing and of legal and news interest is that the defendant is a woman -- a relatively rare occurrence.

The American Humane Association which was responsible for gathering these data from 1973 through 1987, found that approximately 20 percent of substantiated cases of child sexual abuse during that time period had been perpetrated by females. (Information on perpetrator gender is not available for 1988-1992; data eventually will be available for 1993 and subsequent years.) However, not all states require the gender of perpetrators to be included in their reports. Thus, says John Fluke, Director of Research and Program Analysis for the American Humane Association, there are inherent difficulties in getting good information, given the fact that we're working with 50 different systems of information development."

Moreover, judging from her dazed demeanor in her first appearance in court, "L.M." seemed to be “out of it.”

Givens ordered the mental health report submitted by Sept. 13 and the defendant to appear in Superior Court Department #5 at 1:30 p.m. Sept. 16.

* Notable Trials follows the same guidelines British newspapers use in cases of this sort. NT withholds the defendant’s name unless and until the case is resolved. That way, if found innocent, the defendant is spared any unfounded public opprobrium. -- TN

Sparks attorney wants Yuba DA's answer

2010-08-17T16:56:00.000-07:00

by Tom Nadeau

Justin Scott, attorney for Dustin W. Sparks, told Yuba County Judge Kathleen O’Connor Monday that he has been unable to wrest a straight answer out of the prosecution whether it will consider bargaining a plea in a double homicide case reaching back to 2005.

The prosecution’s long delays and dodges were both mysterious and onerous inasmuch as Sparks was not even the alleged shooter in the deaths of Scott Davis and Christopher Hance.

Michael Huggins has already been convicted of voluntary manslaughter and sentenced to 16 years in state prison for the deaths which occurred on a medicinal marijuana farm in Linda.

The Yuba DA later charged Sparks with the more serious crime of murder in the first degree in those killings, despite the fact he had fled the scene before the men were shot.

The legality of the first degree murder charges was appealed to higher state courts, with the state Supreme Court eventually sending the case back down to Yuba County Superior Court.

The case is now slated for further adjudication, with pre-trial hearings to start Sept. 14.

Scott told O’Connor Monday that Sparks – who has already spent four years in custody awaiting some definitive action on his case – has made it clear he would consider entering a negotiated plea of guilty, if it led to a sentence of no more than 11 years.

But, Scott said, the defense has yet to receive a reply to the offer, yea or nay, from District Attorney Patrick McGrath.

Deputy District Attorney Michael Byrne said he would consult with McGrath. O’Connor set further hearings on the matter for 1:30 p.m. Aug. 30.

WaPo: New study eyes ‘bought’ judges

2010-08-16T11:59:00.000-07:00

The problem may be clear, but the solution is not, report suggests.

While Washington politicians argue over the role of money in federal elections, a growing number of states are starting to grapple with their own challenge: a tide of special-interest money flowing into local judicial races.

An exhaustive study scheduled to be released Monday shows that spending on state Supreme Court elections has more than doubled over the past 10 years, to $207 million, mirroring the surge in contributions and expenditures for other kinds of political races during the same period.

The report, produced by a trio of nonpartisan policy groups, found that much of the increase has been fueled by outside groups funding attack ads of the kind commonly found in partisan races for the White House, Congress or governors' mansions. Industry groups, trial lawyers and others are increasingly targeting specific judges for removal over rulings that hurt their financial bottom line, the report shows.

The findings come amid mounting evidence that 2010 is likely to mark a new watershed for spending in a midterm election year. The study also underscores a growing debate in legal and political circles over the influence of campaign money in judicial races, particularly in 22 states where top judges face challengers or 16 others that hold "retention" elections for judges.

U.S. Supreme Court Justice Ruth Bader Ginsburg has joined her former colleague Sandra Day O'Connor in calling on states to give up the practice of electing judges, arguing that raising campaign money and promising outcomes on the bench is antithetical to a fair judicial system.

The 'King of Crazy Lawsuits'

2010-08-14T16:31:00.000-07:00

by Tom Nadeau

This guy I'd like to interview this guy, Jonathan Lee Riches. His lawsuits speak volumes. Literally.

“Jonathan Lee Riches will be in every local, state, federal court in the world, then when my name gets banned or flagged, the 100’s of AKA’s of mine kick in and refile. I’m Murphy’s Law, the Plague, Cyrus the Lawsuit Virus. I swine flu suits with tainted pork in the courts. I appeal. Anyone is welcome to write me. I appeal.” —Jonathan Lee Riches, March 16, in a motion appealing the decision of Hon. Miriam Goldman, Southern District of New York, denying him representation of Martha Stewart in United States of America v. Stewart.

Comes now Jonathan Lee Riches, aka the “Legislator Crusader,” “Johnny Sue-nami,” the “Duke of Lawsuits,” the “Neal Boortz of Appeal Courts,” “Sue-per-man,” the “Patrick Ewing of Suing,” the “Lawsuit Zeus,” aka “Bernard Madoff,” aka “Irving Picard,” aka “Howard Stern,” aka “Herb Allison,” aka “Robert Alan Meyst,” aka “Farouk AbdulMutallab,” the undisputed world champion of the frivolous, farcical and otherwise insane lawsuit, hell-bent on transforming the court system of the United States, and ultimately the entire world, into the stage for his own twisted brand of humor.

The entire Riches story by Beau Hodai is well worth the entertaining read.

In one of my previous Theaterland columns in the Appeal-Democrat newspaper, I wrote at length about how attending a trial in court was much like -- and at least as much fun -- as going to a stage play, or a first-run movie.

Moreover, Riches is bursting with great ideas for the more litigious of us, or for those of us who are fans of the litigation process on basic principles.

Lawsuits fly in various Griesa matters

2010-08-13T12:04:00.000-07:00

by Tom Nadeau

Lawsuits are flying about involving Joseph Griesa, the Marysville businessman who has pleaded no contest to charges that he did not pay certain taxes and that he acted improperly with under-aged female employees.

Griesa has sued one of the several attorneys who have represented him in Yuba County Superior Court in the interlocked and complicated matters of People v. Griesa and People v. Santana, Vasquez.

He also has reportedly filed a separate $5 million cross-complaint in Sutter County Superior Court against a female who in a different lawsuit is accusing him of sexual harassment.

And in an entirely unrelated matter, he is being sued in Sutter County Superior Court by a woman who seeks damages for injuries allegedly suffered in a March 14 traffic accident.

It's a litigious world ...

In Griesa v. Chuck Smith, civil case #10-1681, filed July 23, the former Mitchell Towing Service owner seeks compensatory and punitive damages for an unspecified amount for alleged legal malpractice and breach of fiduciary duty, additional attorney’s fees, damage to his reputation and emotional distress.

The two-page attachment outlining his beef against Smith – the third of four attorneys who have represented in this Hollywood epic of a lawsuit – recounts hiring Smith on June 28, 2008 and firing him in August 2009.

Griesa claims he paid Smith a total of $105,000 for legal representation.

During the time in question, Griesa alleges Smith dodged dealing with the “obscure” tax code violations he was charged with, gave him poor legal advice, did not meet with accountants, provided inadequate support research and failed to call some 20 possibly exculpatory witnesses to testify.

“Chuck Smith was never hired to believe in my innocence but was hired in giving [six] a proper defense,” Griesa said in the attached complaint.

The $5 million cross-complaint Griesa filed in Sutter County alleges the woman’s accusations are slanderous and defamatory and that his accuser intentionally inflicted emotional distress when she filed the lawsuit.

The woman was reportedly 17-year-old minor at the time of the alleged crimes. Griesa counter-charges that the woman’s basic motive for suing him was profit.

Griesa is acting as his own attorney in both his lawsuit against Smith and his counter-suit against the unnamed female.

In the traffic accident lawsuit Jaspreet Kaur v. Griesa, et al, CV-10-1076, the plaintiff seeks at least $100,000 for personal injuries and property damages allegedly sustained.

The vehicles collided March 14 on Smith Road about one-tenth of a mile west of State Road 99, the lawsuit stated. Kaur's lawsuit was filed May 12, not quite two months later.

Griesa is expected to sentenced Aug. 27 in his Yuba County convictions. His sentence could range from probation and county jail time to four years in prison, attorneys have said.

As a result of his conviction, he must now register as a sex offender wherever he resides.

Mourners remember G. Dave Teja,famed for prosecuting Juan Corona

2010-08-12T11:13:00.001-07:00

by Tom Nadeau

Memorial services for G. Dave Teja were heavily attended Wednesday with the assemblage of family and friends, prosecutors, defense attorneys and cops representing his seven decades of life and service in Sutter County.

He died Aug. 7 of declining health and complications from heart surgery. He was 71.

A former Sutter County Municipal Court, district attorney and public defender, Teja is probably best known for his role in prosecuting labor contractor Juan Corona for the 1971 murders of 25 itinerant farm workers whose bodies were found buried in shallow graves in orchards along the Feather River north of Yuba City.

The sheriff at the time, Roy D. Whiteaker, said even more bodies may have been buried in the area.

Corona was sentenced in 1973 to 25 life sentences. A second trial in 1982 failed to render an acquittal and he was returned to prison to serve out his sentence.

During his 20-year tenure in Sutter County's legal system and another 20 years in private practice, Teja earned a high reputation for his fairness, approachability and sense of humor.

He died Aug. 7 following six-way heart-bypass surgery, family members reported.

Teja remembered ...

The “remembrance” service was held at Enterprise Masonic Lodge Hall #78 of the Free and Accepted Masons located diagonally across Second Street from the Sutter County Superior Court building where Teja had spent much of his working life.

Teja was a Master Mason, speakers officiating at the service said.
Several Sutter County notables were seen in the audience, including Sutter County Superior Court Judge H. Ted Hansen and Sutter District Attorney Carl Adams. A number of local attorneys and retired cops were also present.

During the service, police sirens were heard outside, a coincidence that added a poetic touch to the event, especially in light of one recollection Whiteaker offered.

He wanted to kick in the door

It seems that while Teja was DA and Whiteaker was Yuba City police chief, Teja, who kept guns himself, liked to “ride along” on police raids.

As Whiteaker told it, Teja “always enjoyed going on raids” and harbored a secret, long-held desire to take a more active role in police actions.

“I’d like to kick in the door,” Teja shyly confess to him once, Whiteaker said.
So, eventually, when the opportunity arose, the cops let Teja go for it … and go for it … and go for it again.

After three unsuccessful attempts to kick in the door – each time more forcefully – Teja finally gave up. Then, Whiteaker recalled, one of the officers simply turned the knob and the door opened effortlessly.

A wave of friendly laughter rippled through the packed audience.

Not one to give up Teja pressed for another another opportunity to “kick in the door,” Whiteaker recalled.

This time it turned out to be a hollow core door and Teja’s foot got stuck in the door. The officers on the raid just walked around Teja (presumably with straight faces), leaving him to his own devices to extricate his trapped foot.

An even bigger wave of laughter swept through the gathering of friends and colleagues.

Childhood friend Isabel Garcia

Another significant speaker at the Teja memorial was Isabel Garcia, who has written on the history of the “Mexican-Hindu” community in Sutter County.

She grew up with Teja, their family fruit ranches neighboring each other. Among the two families she was known as “sister Isabel.”

Teja was perhaps the best known member of the “Mexican-Hindu” group and was often sought out for quotes about the “Punjabi-Mexican,” or “Mexican-Hindu” community that flourished for a time in Yuba City.

Hindoos to others, the Punjabi-Mexican considered himself/herself half-Indian. “I was also called eight annas to a rupee since I was only half-Indian,’ says G. Dave Teja, an attorney and realtor, without any rancour. He was elected the district attorney in 1963, a post he held till 1974. "Isabel and I went to grammar and high school together," reminisces Teja, sitting outside the porch of Singh Garcia's house in Yuba City. Teja's isn't a typical immigrant story: his father Bachan Singh Teja didn't rough it out in the farms; instead, he studied at the University of Arkansas where he met his bride, Delle Fuglaar, who was of Norwegian, Dutch and Irish stock. They moved to Yuba City in the 1930s.

Teja "shared a heritage'

Sacramento Bee staff writer Bill Lindel interviewed Teja in 1991.

A smaller number of Indian men married black, American Indian or white women. G. Dave Teja's mother was a white woman from Arkansas and his father came to the United States in 1921 from Jalandhar in India.

His parents were married in Arkansas, avoiding the laws at that time prohibiting marriages between whites and Indians in California. The couple's first 10 acres were in his mother's name until 1947, when his father became one of the first Indians to get a citizenship, Teja said.

His mother died in 1989, after 58 years of marriage. His father died last year at the age of 93. Teja said there are one or two old-timers of his father's generation still alive in the Yuba City area.

Teja, the former Sutter County district attorney who prosecuted mass murderer Juan Corona, said he pays dues to the Sikh temple to remain close to his heritage.

"I'm an American." he said. "But I shared a heritage with these (Indian) people. I couldn't deny it if I had wanted to."

Private inurnment of was to follow.

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

2010-08-07T11:07:00.000-07:00

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.”

Simlick held to answer in double homicide case; he's looking at possible death penalty

2010-08-04T11:45:00.000-07:00

by Tom Nadeau

In a courtroom packed with the families and friends of the victims and relatives of the accused, Joseph Hayden Simlick pleaded innocent Tuesday to charges he killed Jack and Susan Martin, whose bodies were found Friday in their burnt-out home in the town of Sutter.

If convicted of special circumstances murder, Simlick, 21, could face the death penalty or life in state prison with no possibility of parole, Sutter County Superior Judge Chris Chandler said.

People v. Simlick, felony cases #10-1786 and #10-1787, also charge Simlick with felony violations of California Penal Code sections 236 and 237, both involving false imprisonment.

As so far disclosed by law enforcement, Simlick is suspected of unlawfully holding the Martin’s youngest daughter for some five days prior to the parents’ deaths.

Delay denied ...

Defense attorney Linda Parisi asked Chandler to postpone Simlick’s entry of plea, but Assistant District Attorney Jana McClung successfully objected to any delay.

Parisi, a lawyer out of Sacramento, later said it was uncertain whether she would continue representing Simlick. Another attorney might be retained, she said. Mark R. Van Den Heuvel, a well-known Sutter County defense attorney, was present at the hearing, but said nothing.

Chandler ordered the parties back to court 1:30 p.m. Aug. 18 to set the date for a preliminary hearing.

The atmosphere in the Tuesday arraignment was heavily charged, due in part by the aggressive demeanor of sheriff’s deputies and the curt manner of court bailiffs.

About 15 law enforcement personnel – some uniformed, many in plainclothes – ringed the public seating section in Department 1. Maintaining courtroom decorum may not have been the only motive behind the massive show of armed force.

At one point, a uniformed female officer, apparently a bailiff, loudly proclaimed the venue to be “my courtroom” – a sweeping claim of personal ownership Judge Chandler might want to take note of.

Another uniformed bailiff told spectators that any noisy outburst would result in immediate ejection, not just from the courtroom, but from the courthouse entirely.

Federal agents and courthouse personnel guarding the Sacramento hearings in US v. Theodore “Ted” Kaczynski -- the so-called “Unabomber” who slew three and injured 23 others over a 20-year span – were never that hyped up, nor did they openly threaten the public with such extreme retaliatory measures.

At the end of the 25-minute arraignment, spectators remained seated while guards ushered the tall, dark-haired defendant out of the courtroom to a transport vehicle parked behind the courthouse.

Individuals approached by members of the press declined comment. Victim family members met with officials in the District Attorney’s Office.

Theater, sex, crime converge once again

2010-08-02T06:49:00.000-07:00

The man who stole Shakespeare to fund a good time and a girl got eight years and a tongue-lashing from a judge for booklegging a priceless early edition of the Bard's works, the British press reported today.

An unemployed antiques dealer with a taste for the high life was jailed today for eight years after he was convicted of handling a stolen copy of a rare first collection of Shakespeare's plays.

Raymond Scott, 53, who drove a yellow Ferrari and posed as an international playboy despite having huge debts, walked into one of the world's leading Shakespeare research centres with the 17th century book.

Staff at the renowned Folger Shakespeare Library in Washington D.C. recognised the valuable book and called the police, the British Embassy and the FBI.

Regarded as one of the most important printed works in the English language, less than 250 copies of the collection survive.

They were first printed in 1623, seven years after Shakespeare's death.

Judge angered by crime against culture ...

Last month a jury at Newcastle Crown Court found Scott guilty of handling stolen goods and removing stolen property from Britain.

However, he was cleared of stealing the book from Durham University in 1988.
Passing sentence, Judge Richard Lowden said: "You are to some extent a fantasist and have to some degree a personality disorder and you have been an alcoholic.

"It is clear that from the (psychiatric) report you are not suffering from any mental disorder."

Passing sentence, the judge branded the damage to the First Folio as "cultural vandalisation" and described it as a "quintessentially English treasure".

He said Scott had either deliberately damaged the book himself or was party to its damage and attempted to benefit from it.

"It would be regarded by many as priceless but to you it was definitely at a very big price and you went to very great lengths for that price," Judge Lowden told Scott.

"Your motivation was for financial gain.

"You wanted to fund an extremely ludicrous playboy lifestyle in order to impress a woman you met in Cuba.

"Your Cuban friends were brought in to provide support for your elaborate scheme."

Trials from the Old Bailey, 1674-1913

2010-07-31T17:39:00.000-07:00

British historians recently presented to the public a compilation of the full transcripts of trials conducted at The Old Bailey over the course of 239 years.

This enormous task provides a wealth of historical details for court buffs and trial aficionados to peruse and savor.

Notable Trials will from time to time present the transcripts of selected trials -- the famous, the infamous and the occasionally petty -- upon which many of our best legal traditions are ultimately based.

From the introduction:

These Proceedings contain accounts of trials which took place at the Old Bailey. The first published collection of trials at the Old Bailey dates from 1674, and from 1678 accounts of the trials at each sessions (meeting of the Court) were regularly published. Inexpensive, and targeted initially at a popular audience, the Proceedings were produced shortly after the conclusion of each sessions and were initially a commercial success. But with the growth of newspapers and increasing publication costs the audience narrowed by the nineteenth century to a combination of lawyers and public officials. With few exceptions, this periodical was regularly published each time the sessions met (eight times a year until 1834, and then ten to twelve times a year) for 239 years, when publication came to a sudden halt in April 1913.

Origins, history, Crippen and Le Neve ...

Accounts of the lives and exploits of notorious criminals were published as ballads, chap-books, and broadsides from the sixteenth century. These inexpensive publications were designed to entertain, and they reached a wide market. In the 1670s, perhaps as a result of growing concern about crime, there was an explosion of crime literature, including criminal biographies, the last dying speeches of executed criminals, Ordinary of Newgate's Accounts of the lives of criminals, and trial accounts.

The first surviving published account of a group of trials which occurred at the Old Bailey (as opposed to accounts of notable single trials) was from the April sessions of 1674. Entitled News from Newgate: or an exact and true accompt of the most remarkable tryals of several notorious malefactors... in the Old Baily, this pamphlet, like many early editions of the Proceedings, described only some of the trials which took place at that sessions. As this pamphlet concluded, in addition to those reported there were also "divers other tryals which would be too tedious to insert".

Editions survive for most sessions in the late 1670s, but were produced by a number of different publishers. On occasion, as in January 1676, two competing accounts were published of the same session. These early Proceedings were similar to the earlier chapbooks with their sensationalist and judgemental approach, and they were very selective in the trials they chose to publish.

The passage of the Criminal Appeal Act in 1907 fundamentally undermined the Proceedings. The taking of full shorthand notes of trials now became a statutory requirement, with the appointment of the shorthand writer made by the Lord Chancellor, and their fees paid by the Treasury. Now that the cost of taking the notes was paid for by the Treasury, the City only had to pay for the publication of the Proceedings, and accordingly it reduced its annual payment to George Walpole to 200 [pounds]. However, there was no longer any compelling reason to publish the Proceedings in any form.

Walpole subsequently found that he was losing about 200 [pounds] a year publishing the Proceedings, and in October 1912 he gave formal notice to the City that he would terminate his existing contract, unless they would agree to publication in a more abridged form. Given that shorthand notes of all trials were now paid for by the government, and full transcripts of any trial could be obtained whenever they were required, the City decided that the abridged version would be of no use. As the Recorder opined, “now that an official shorthand note is taken of the evidence in all criminal cases we can do without the sessions papers”. Following months of ultimately unsuccessful negotiations with Walpole it was decided in April that publication should cease.

At the conclusion of the April 1913 issue of the Proceedings, readers found a simple statement, "the publication of the C.C.C. Sessions Papers is now discontinued", thus bringing to an end the 239 year history of this extraordinary periodical.

Note: Among trials contained in the Old Bailey are the proceedings of some of the most famous trials of the most infamous criminals ever recorded in the English language, including Burke and Hare, who together robbed graves and murdered others to obtain the cadavers they sold to doctors and medical schools to practice autopsies on and H.H. Crippen who killed his wife to take up with a younger woman Ethel Clara Le Neve, who was also charged in the crime.

Notable Trials intends to excerpt some of the more interesting trials. The excerpts come from the original entries, just as they were transcribed by the court reporter.

Let’s start with Crippen.

CRIPPEN, Hawley Harvey (48, dentist) was indicted for and charged on coroner's inquisition with the wilful murder of Cora Crippen, otherwise[called] Belle Elmore. Case # t19101011-74; charge, murder; verdict, guilty; punishment, death.
Transcript of proceedings of Old Bailey proceedings that began Oct. 11, 1910.

An excerpt:

(Wednesday, October 19.)
Chief Inspector WALTER DEW. On June 30 a Mr. Nash called at Scotland Yard and made a statement, and I was instructed to make inquiries with reference to the disappearance of Mrs. Crippen. On July 8 I went to 39, Hilldrop Crescent and there saw Le Neve; prisoner was not in the house. Le Neve accompanied me to Albion House and I there saw prisoner; he was then wearing a heavy moustache. On telling him that his wife's friends were not satisfied with what he had told them as to his wife's disappearance, and that after making inquiries I also was not satisfied, he said, "I suppose I had better tell the truth. The stories I have told them about her death are untrue; as far as I know she is still alive." He then made a statement, which was taken down by Sergeant Mitchell and signed by prisoner.

(The statement was read. In it prisoner said that he was a doctor, that he took the degree of M.D. at the Hospital College at Cleveland, United States, that he came over to England in 1883, that he was married in New York to a lady named Bell, who died in 1890 or 1891, and that in 1893 he met Belle Elmore, whose name at the time was Cora Turner, and who at that time was only 17 years of age and was living under the protection of a man. Prisoner said that he found her very attractive, that she told him she was going to run away from the man under whose protection she was living, and that rather than she should do that he married her in Jersey City in 1893. Prisoner then gave a description of various places in which he and his wife lived, and said that eventually, about 1900, he came to England alone, his wife coming shortly afterwards and taking up her residence with him. She used to go in for music hall sketches, although he objected to her doing so. He went to America from November to June, and when he came back he found that an American music-hall artist named Bruce Miller had been a frequent visitor to her at their house. She told him that this man had taken her about, that he was very fond of her, and she of him. Prisoner said that he had seen letters to his wife from Bruce Miller ending "With love and kisses to Brown Eyes." When his wife came to England from America her manner towards him had entirely changed; she had developed a most ungovernable temper, and seemed to think he was not good enough for her. She boasted of a man in a good position who had made a fuss of her. He never saw the man Bruce Miller, but Miller called when he was out and took her out in the evening. She and prisoner continued to live together apparently happily, but there were frequent occasions on which she got into violent tempers, and threatened to leave him, saying she had a man she could go to. Some time after this he ceased to cohabit with her, but never interfered with her movements. They were of no interest to him. On January 31, the day before he wrote the letter resigning her position from the Guild, Mr. and Mrs. Martinetti came to their place to dinner, and after they had left his wife abused him and said she would not stand it any longer; she would leave him next day and he would not hear of her again, and he might cover up the scandal with their mutual friends and the Guild the best way he could. On returning home from business on the evening of February 1 he found she was gone. He sat down to think how to cover up the scandal, and wrote a letter to the Guild saying she had gone away. He afterwards told people that she was ill with bronchitis and pneumonia, and had died in California. What-ever he had said to other people regarding her death was wrong, and he was giving this as an explanation. It was not true that she went away on legal business or to see relatives in America. He did not receive any cables to say she was ill, and it was not true that she was cremated in San Francisco, or that the ashes were sent to him. Prisoner further stated that when his wife went away she took some of her jewellery, but left four rings behind. He had never sold or pawned anything belonging to her. Le Neve was then living with him as his wife at Hilldrop Crescent. He had been intimate with her for three years. After he had told people that his wife was dead he and Le Neve went to Dieppe for five days and stayed at a hotel there in the name of Mr. and Mrs. Crippen. His belief was that his wife had gone to Chicago to join Bruce Miller.)

After taking this statement from prisoner and also a written statement from the Neve I suggested to prisoner that I should accompany him back to 39, Hilldrop Crescent and go over the house; he agreed readily. We went back, and he showed me into every room in the house, and the cellar. I asked to see the jewellery his wife had left behind her, and he showed me Exhibits 7, 8, 9, 10, and 11. I fold him, "Of course, I shall have to find Mrs. Crippen to clear this matter up" He said, "Yes; I will do anything I can; would an advertisement be any good?" I said I thought it an excellent idea; he wrote out the draft advertisement (Exhibit 41), and said he would insert it in various American newspapers; I left the draft advertisement with him. I continued my inquiries, and on July 11 (having first found that prisoner was not at Albion House) I went to 39, Hilldrop Crescent; there was no one in the house. I found on a table Exhibit 41. I searched the house and the cellar, and dug up portions of the garden. That day I circulated a description of prisoner and Le Neve to various ports in England and abroad. On July 12 and 13 I further examined the house; on the 13th I determined to closely examine the cellar. It had a brick floor: I probed about with a poker; at one place I found that the poker went rather easily in between the crevices, and I got a few bricks up. I then got a spade and dug the clay immediately beneath the bricks. After digging about four spadesfull down, that is, about nine inches below, I came across what appeared to be human remains. I sent for Dr. Marshall, the Divisional Surgeon, and for Sir Melville Macnaghten, the chief of the Criminal.

We now move on to Le Neve.

LE NEVE, Ethel Clara (27, typist) was indicted , "That, on February 1, 1910, Hawley Harvey Crippen having feloniously and unlawfully and of his malice aforethought murdered Cora Crippen, she, Ethel Clara Le Neve, well knowing the said Hawley Harvey Crippen to have committed the said felony, did on that day and on divers days there-after feloniously receive, comfort, harbour, assist, and maintain him." Case # t19101011-75; defendant presented no evidence; verdict, not guilty. Transcript of Old Bailey proceedings that began Oct. 11, 1910.

An excerpt:

Chief Inspector WALTER DEW repeated certain portions of his evidence. On July 8, after taking a statement from Crippen, he took a statement from Le Neve (Exhibit 40), Crippen not being present. In this statement prisoner said that she was a single woman, 27 years of age, and a shorthand-typist. Since the latter end of February she had been living at Hilldrop-crescent with Crippen as his wife. Before then she lived at Hampstead. She had been on intimate terms with Crippen for between two and three years, and had known him for ten years. She knew Mrs. Crippen, and had visited Hilldrop-crescent. Mrs. Crippen treated her as a friend. "In the early part of February, the statement continued, "I received a note from Crippen saving Mrs. Crippen had gone to America and asking me to hand over a packet he enclosed to Miss May, an official of the Music Hall Ladies' Guild. About 4 p.m. on the same day he came to our business place, Albion House, and told me his wife had gone to America. He said she had packed up and gone. I had been in the habit for the past two or three years of going about with him, and continued to do so. About a week after he told me she had gone to America I went to Hilldropcrescent, put the place straight, as there were no servants, but at night I went to my lodgings, and I did this for about a fortnight. The place appeared to be all right; quite as usual. He took me to the Benevolent Fund dinner, and lent me a diamond brooch to wear, and later he told me I could keep it. After this he told me she had caught a chill on board the ship and had got pneumonia, and afterwards he told me she was dead. He told me he could not go to the funeral as it was too far, and she would be buried before he could get there. Before he ever told me this I had been away with him for five or six days at Dieppe, and stayed at an hotel with him as Mr. and Mrs. Crippen, but cannot remember the name of the place. When we came back he took me to Hilldrop-crescent, and I remained there with, him, occupying the same bedroom. The same night, or the night before, he told me that Belle was dead. That would be about March 30. I was very much astonished, but I do not think I said anything to him about it. I have not had any conversation with him about it since. He gave me some furs of his wife's to wear, and I have been living with him ever since as his wife. I have given up my lodgings and taken up my abode at Hilldrop-crescent. My father and mother do not know what I am doing, and think I am housekeeper at Hilldropcrescent. When Crippen told me his wife had gone to America I do not remember if he told me that she was coming back or not. I cannot remember if he went into mourning."

Chief Inspector Dew continued. On July 16 a warrant was placed in my hands for the arrest of Crippen and Le Neve on the charge of murdering Cora Crippen, and immediately afterwards there were particulars in the Press of the discovery of the remains, and descriptions and portraits of the two accused. On July 31 I boarded the "Montrose" at Father Point. I first arrested Crippen; he had then no moustache and was not wearing glasses (when I had seen him in London he had a moustache and wore gold-rimmed glasses). I then went into a cabin where I saw Le Neve; she was dressed in a brown suit of boy's clothes (suit produced and identified as that bought by Long at Crippen's directions; see page 723). Her hair was cut short I said, "Miss Le Neve"; she said, "Yes." I said, "I am Chief Inspector Dew, and you will be arrested for being concerned with Dr. Crippen in the murder and mutilation of Mrs. Crippen in London on or about February 2 last." She made no reply, but became agitated and faint. The cabin she was in was the one also occupied by Crippen. (Witness spoke to finding on Crippen the cards, Exhibits 2 and 3, and various articles of jewellery.) Later I was present when the captain of the "Montrose" asked her if she had not seen in the papers a letter from her father; she said, "No, I have not seen any papers since I left London, and know nothing about it; if I had seen anything in the papers I should have communicated at once." Later she said, "I assure you, Mr. Dew, I know nothing about it; I intended to write to my sister when I got to Quebec." On the voyage back to England I read the warrant to her (setting out the charge in the present indictment); she said, "Yes." On the formal charge at Bow Street she made no reply.

Not near enough to death: Judge rejects move to record ailing witness's testimony

2010-07-30T11:34:00.000-07:00

by Tom Nadeau

A Yuba County judge has rejected a prosecution request to record the testimony of a key witness against Dustin W. Sparks, who may find out Sept. 14 whether he goes to trial on a double murder charge.

The witness, Michael Hance, was in ill health, Deputy District Attorney Michael A. Byrne told Superior Court Judge Kathleen O’Connor and he was hoping to get Hance’s testimony recorded that day, just in case he died before trial started.

Two mini-cams had been pre-positioned to capture Hance’s testimony, if O’Connor ruled favorably.

But two defense attorneys opposed the motion, saying, essentially, that Hance didn’t look all that sick to them, that he had been physically able to attend court that day, the trial was but a few weeks away and, besides, Hance was expected to be the first witness in the trial and would probably only testify for one day.

Hance entered with the aid of a cane. Under Byrne’s questioning, he described his physical condition – a condition not to be envied.

Organs failed, failing or removed ...

Several of his internal organs either had stopped working properly or were removed entirely, he testified. Portions of his stomach had been removed and a long section of his esophagus had been cut out, he said.

Also a diabetic, Nance had been admitted to hospital several times in recent months, most recently because of his high blood-sugar levels.

Blood sugar level is measured by means of a glucose meter, with the results expressed in milligrams per deciliter (mg/dL) of blood. The average normal person should have a glucose level of around 80 to 125 mg/dL.

The last time he was admitted to the hospital, his level had rocketed to 1,200, Hance testified.

But his main problem, Hance said, was his failed pancreas. Doctors have told him that, if he could get a pancreatic transplant, he might live 10 years more. If not, he might five years left, Hance testified.

Sparks is charged with first degree murder. He is one of several defendants named in connection with a double-murder case that dates back to September 2005.

A jury acquitted the shooter, Michael Huggins, of first-degree murder but found him guilty of voluntary manslaughter.

The jurors reportedly rejected the first-degree charge, reasoning that Huggins did not intend to rob or burglarize the Hance property when he entered the fenced and gated property at 3 a.m. armed with a loaded .45 caliber handgun.

Huggins apparently convinced the jurors that he had gone to the property intending to buy marijuana and only shot Christopher Hance and Scott Davis when they and a guard dog attacked him.

The marijuana was being grown for Christopher Hance’s seriously disabled father, Michael Hance.

News reports indicated that Sparks had remained outside the fence during the encounter.

While Huggins was convicted of voluntary murder, Sparks still faces first-degree murder charges.

Sparks' attorney, Justin Scott, has argued that, in view of the jury’s decision on Huggins, his client should only be charged with voluntary manslaughter rather than first-degree murder.

The issue was appealed to the state’s higher courts. The California Supreme Court ruled in February that Sparks could be tried on the tougher charge.

Also in court Wednesday was another defendant in the complex case: Angelic Louise Rampone. Her attorney, Roberto Marquez, joined Scott in disputing the need to record Michael Nance’s testimony in advance, basically on the same rationale that Nance’s death was insufficiently probable.

Judge James Curry, who resided over much of this case, rejected a May 29 motion by Marquez to dismiss the charges against Rampone. However, Curry did later trim her bail from $1 million to $10,000. That ruling led to her release from the Yuba County Jail.

Curry has since retired from the bench.

A further hearing in her case is set for Sept. 14.

Judge O’Connor’s rejection ruling was not as heartless as it may seem. She told Byrne the form of medical request that Nance’s doctor had provided the court – a simple letter – was insufficient documentation for her to base a proper legal ruling.

She left the door ajar for the prosecution to re-file its motion should circumstances changed before trial.

The pre-positioned mini-cams were never turned on.

A pre-trial discovery hearing will be held Aug. 16. Further action on Sparks is expected on Sept. 14.

Dates set for 2nd Cole murder trial

2010-07-29T10:46:00.000-07:00

by Tom Nadeau

Suspected killer Todd Allen Cole Jr. will be re-tried starting Sept. 21 for the death of Scott Malmstrom, a Yuba County judge ordered Wednesday.

The jury selection will be preceded by pre-trial hearings currently scheduled for Aug. 9 and for Sept. 7 and 9, Superior Court Judge Kathleen O’Connor ordered.

A mistrial was declared in the first proceedings in People v. Cole, YCSC case #CRF-09-469, after the jury announced it was deadlocked and unable to reach a unanimous verdict.

News reports indicated the jury has hung, 10-2, with the majority favoring a guilty verdict.

Cole is charged with stabbing Scott Malmstrom to death July 2009 in Malmstrom’s apartment in the 1400 block of North Beale Road in East Linda.

Further details ...

Malmstrom was stabbed 17 times. Investigators claimed to have found Cole’s finger- and foot-prints in the victim’s blood.

The jury could have found Cole innocent; or guilty of either voluntary manslaughter, or 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.

Attorneys will report more specifically about any pre-trial motions they may be considering when the parties meet Aug. 9.

They will meet in court at 1:30 p.m. for a trial readiness conference and any in limine motions will be heard and considered at 1:30 p.m. Sept. 20.

In limine is a Latin legal term meaning "at the threshold.") Such motions are formal requests made before a trial commences asking the judge to rule whether or not certain evidence is or is not admissible at trial.

Yuba judge slated to set Cole re-trial date

2010-07-27T13:02:00.000-07:00

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.

NorCal counties lead state in prisoners

2010-07-25T12:36:00.001-07:00

by Tom Nadeau

The Sacramento Bee recently reported that the likely impact of a federal judge’s ruling that California officials reduce the state prison population would be significant, especially on five north state counties which have the highest rate of incarcerated citizens.

In an update of a survey the Bee’s Phillip Reese did one year ago, he reported in March that:

A panel of federal judges [has] ordered state officials to lower California's prison population by around 40,500. While no mass prisoner releases are imminent, the order could eventually impact some counties a lot more than others. The Sacramento region, for instance, sends a high proportion of its residents to prison; if the judges' order was applied equally, 3,000 would-be prisoners would either be on the region's streets, under house arrest or sitting in already-crowded jails. (Those offenders, however, would likely be guilty of lower-level felonies.))

The top five counties with the most residents in prison were, in descending order, Kings, Yuba, Shasta, Tehama and Lake.

[Note: inmates generally return to their home county upon release, although some filigrees on this trend do exist.]

The breakdown ...

Kings with a total population of about 153,800 reportedly has the highest per capita rate with 1,455 in prison, or 9.4 persons per 1,000 total residents.

"Northern California" is defined in different ways by various interested parties.

California is, north to south, about 875 miles long, with Smith River in Del Norte County the northernmost and Imperial beach in San Diego County the southernmost points of reference. Dividing the state simply in miles would make Merced in Merced County roughly the mid-way point at 491 miles.

However, based on population counts, politicians, county clerk vote counters and campaign organizers regard anything north of Bakersfield to be “Northern California,” since that’s where the half-way mark for population lies.

Hanford, the county seat of Kings County, is 518 south of Smith River, but, politically speaking, it would still be in Northern California.

At last published count, Yuba, population 60,200 had 603 residents in prison, or 8.3 persons per 1,000; Shasta, population of 163,300 had 1,503 residents in prison, or 8.2 per 1,000;Tehama, with a population of 56,000 in 2008 had 503 residents in prison; or 8.0 per 1,000. and; Lake population 58,300 had 503 residents in prison; or 7.9 per 1,000.

As others see us

So it was that the respected Economist magazine in Britain tersely reported July 22 that:

Justice is harsher in America than in any other rich country. Between 2.3m and 2.4m Americans are behind bars, roughly one in every 100 adults. If those on parole or probation are included, one adult in 31 is under “correctional” supervision. As a proportion of its total population, America incarcerates five times more people than Britain, nine times more than Germany and 12 times more than Japan. Overcrowding is the norm. Federal prisons house 60% more inmates than they were designed for. State lock-ups are only slightly less stuffed.

The system has three big flaws, say criminologists. First, it puts too many people away for too long. Second, it criminalises acts that need not be criminalised. Third, it is unpredictable. Many laws, especially federal ones, are so vaguely written that people cannot easily tell whether they have broken them.

Thus, California’s rate of incarceration is among the highest in a nation which in turn sports the highest record of imprisoning more of its citizens for committing the least of crimes.

It does not take much of a leap of imagination to realize that the people of California who, 30 years ago would have considered such situation indicative of being a prison state, now likes to think of itself as being “tough on crime.”

Income clearly plays a key role.

At the time of the 2000 census, the median income for a household in Kings County was $35,749. The per capita income was $15,848. About 19.5% of the population was below the poverty. In 2003, Kings County had the lowest per capita income in the state of California, according to Census statistics.

Similarly, the median income for a household in Yuba County was $30,460. The per capital income was $14,124. About 20.8% of the population was below the poverty line.

[Note: Kings County is awarded the “lowest per capita income in the state, with $15,848, while, on the same 2000 census, Yuba County shows a lower PCI of $14,124. These figures are drawn from the generally reliable Wikipedia. I can not determine the cause of the anomaly, other than it might derive from an incorrect assumption by a contributing Wikipedian.]

For Shasta County, the median income for a household was $34,335. The per capita income was $17,738. About 15.4% of the population were below the poverty line.

The median income for a household in Tehama County was $31,206, and the per capita income was $15,793. About 17.3% of the population was below the poverty line.

The median income for a Lake County household is $49,627. The per capital income for was $43,825. About 4.6% of the population were below the poverty line.

The higher incarceration rates seem to track the lower income, which should surprise no one. Two anomalies should be pointed out.

Kings County is home to Corcoran state prison, which was built to house 3,396 prisoners but as of 2008 housed 5,544 prisoners – or 163 per cent of its rated capacity.

One punitive tactic the state sometimes employs is to put prisoners as far away from supportive families as possible. This in turn leads to some of the families moving to be closer to the prisons where their relative is incarcerated, which in turn can increase the number of resident felons in a county. Some families can have more than one child who is doing time or did time.

Lake County shows relatively high household and per capita income. This may come from the fact that Lake County gets its name from Clear Lake, a popular place for summer homes.
Some well off retirees choose to relocate to their summer homes, and either sell their original main residence elsewhere for added income or leaving it to their children. This can skew the comparative income figures.

Echoes from the past

The state of California’s decision to save money by releasing prisoners echoes an experience many may have forgotten: Ronald Reagan’s decision when he first became governor of California in the early 1970s that he would save money by closing many (possibly most) state mental institutions and release its tenants to the streets.

The theory was that new therapeutic medications made such a wave of discharges possible.

I was living on University Avenue in Berkeley, Calif. when the sick and hapless were booted out of care-giving facilities. Within two weeks lone loonies were showing up wandering up and down University Avenue, frightening pedestrians, walking in front of moving cars and getting arrested to be placed in jail.
I asked a Berkeley cop at the time, what was going on.

It seems, he said, that the dischargees just were not compos mentis enough to take their medications correctly (some took all his or her pills all at once; others didn’t take them at all; and some were selling them to make up for the fact the small income they had been awarded wasn’t enough to pay their rent.)

Where were the cops taken the loonies their were arresting, I asked the helpful, honest cop.

“They’re going in with the bad guys in jail,” I recall the cop saying.

So, Reagan’s cost-saving move transferred the sick and helpless from care-giving facilities to prison environments where they were often victimized by other inmates who were there for serious offenses.

This sudden spike in jail populations, of course led (in part) to the hiring of more correctional officers, which later in turn led to the expansion of the California Correctional Peace Officers Association – now one of the states most powerful lobbying groups.
The truth was, the money being “Saved” was not being saved at all. It was simply being diverted from providing more care to paying for more cops.

Proving once again that Californians get what they pay for – and, sometimes, what they won’t pay for.

No ruling yet on Santana, Vasquez

2010-07-21T09:09:00.000-07:00

by Tom Nadeau

At the last formal Yuba County Superior Court hearing in early June on the epic ethics case, People v. Santana, Vasquez, Judge John Darlington said he would probably rule within a few weeks whether he would dismiss it, or let it go to trial.

But here it is late July and the retired Nevada County judge has uttered nary a word on his decision on the motion he took under advisement in the first week in June.

The parties haven't said much, either.

“We have not yet received a ruling from Judge Darlington,” defendant Jesse Santana confirmed Monday.

Back in June, Darlington declined to give a date-certain deadline for his ruling, but he did set a hearing on the motion for 1:30 p.m. Aug. 8.

Yuba-Sutter attorneys Santana and David Vasquez were indicted by the Yuba County grand jury two years ago, based on evidence District Attorney Patrick McGrath presented alleging that the two lawyers had acted unethically in negotiating a financial settlement between tow truck operator Joseph Griesa and an underage female employee – “SA” – who claimed he had allegedly harassed her sexually.

The main charge is bribery ...

The main charge in Santana, Vasquez is bribery. It raises serious and intriguing questions about how lawyers can do business – business that frequently involves out-of-court settlements.

First filed two years ago, this constantly expanding criminal case has not yet reached the arraignment stage, much less trial.

In the interim, Griesa went to trial on the harassment allegations and was convicted of some, but not all of the charges. People v. Griesa ended in a three-way split:

He was found guilty on 10 charges relating to: annoying a child; contributing to the delinquency of a minor; unlawful detention; failure to report earnings, and; failure to pay taxes.

He was found innocent of four counts of improper sex-related counts

The jury hung on the remaining charges and a mistrial was declared on charges of indecent exposure, intimidating a witness, sexual battery, false imprisonment and assault with a deadly weapon.

Griesa was to stand trial on those counts in early June, but he decided at the last moment to accept sentencing on his previous convictions rather than chance more convictions on the unresolved charges.

Visiting Judge Ersel Edwards scheduled Griesa’s final sentencing for 11 a.m. Aug. 20

As for the long-pending Santana, Vasquez matter, whichever way Darlington rules – dismiss, or not – his decision will probably wend its way up to the 3rd District Court of Appeals in Sacramento, since both sides are expected to appeal if they lose.

Leary fraud trial to start Sept. 8

2010-07-20T20:18:00.000-07:00

by Tom Nadeau

The trial of former Elk Grove City Council member Michael Leary, charged with legal wrong-doing in a property transfer deal, will start Sept. 8, a Sacramento County judge ordered Tuesday.

Judge Gary Ransom also set one final trial readiness hearing for 1:30 p.m. Aug. 25.

Leary, 49, is charged with four felony counts arising from a challenged 2006 transfer of title for a $610,000 residence at 3301 Marina Cove Circle, Elk Grove.

The alleged victim in the disputed deal was Leary’s former live-in girlfriend, Alyc K. Maselli. The charges against Leary include grand theft and forgery.

Leary has pleaded innocent to all charges in the matter of People v. Leary, #09F07685. If convicted, he could be sentenced to 12 years in state prison and fined some $75,000. He remains free on bail pending trial.

Many documents, week-long trial ...

Ransom set the trial about a month away after Supervising Deputy District Attorney Michael Blazina and defense attorney William Portanova agreed there was “a large volume of subpoena documents” that had to be reviewed before proceedings could begin.

The two attorneys left the courtroom total armfuls of wrapped documents.

The courtly Portanova would say nothing about his client’s prospects, other than to predict that the trial confrontation of the two lawyers would be a meeting of “two gentlemen and scholars.” He said the trial could last one week.

Leary was present at the brief, 10-minute hearing. He made no comment and left immediately.

The last pre-trial conference will be held in Dept. 8 of the Sacramento Superior Court. Judge Geoffrey A. Goodman will preside over the formal trial in Dept. 9, Blazina said.

A 27-year veteran of the Sheriff’s Department, Leary left his high-ranking post upon his arrest. He was an Elk Grove city councilman for eight years before losing a re-election bid. Before that he was Elk Grove community services director.

He and Maselli were said to be planning marriage, but fell out during a banking dispute in early 2008.

Portanova has characterized the Leary-Maselli dispute as the kind of misunderstanding which often arises when couples breaking up try to divide their properties without the advice of attorneys.

Schatz trial set; no word on venue change

2010-07-18T09:16:00.000-07:00

by Tom Nadeau

There is no word yet on whether an alleged child killer couple will try to move their scheduled November trial out of Butte to another California county – possibly Yuba, Sutter or Tehama – due to intense local publicity.

Kevin Paul Schatz and Elizabeth Hazel Schatz of Paradise were arraigned June 24 on a charge of murder in connection with the Feb. 6 death of a 7-year-old adopted daughter.

The girl died from injuries the Schatzes allegedly inflicted after she mispronounced a word. The pair also faces separate criminal allegations of torturing another adopted girl, aged 11, causing great bodily harm.

Both defendants have pleaded innocent to all charges. If convicted, they both face life terms in state prison. Their case file numbers are #CM032008 for Elizabeth and #CM032009 for Kevin.

Their case has drawn keen media interest, ranging from CBS television news and local newspapers to a slew of religion-related Internet blogs.

Grim details ...

The Schatzes, who are white, have six biological children. They adopted the dead girl, Lydia Schatz, the injured girl and a third child from a Liberian orphanage in Liberia about three years ago, various news sources reported.

The death and injuries allegedly resulted from a “biblical chastisement” – a disciplinarian regimen the Schatzes allegedly administered in accordance with teachings advocated by No Greater Ministries, a Tennessee fundamentalist group headed by Michael and Debi Pearl.

The Pearls and their adherents encourage parents to use a "rod," a quarter-inch plumbing supply line, as a "chastisement" tool to train their children to be more obedient, the Paradise Post reported.

See: nogreaterjoy.org

An autopsy showed Lydia died from a rapid breakdown of skeletal muscle caused by blunt force trauma, Butte county District Attorney Mike Ramsey reported.

Her death came after hours of discipline for reportedly mispronouncing a word during a home school reading lesson. The 11-year-old sister suffered similar discipline the day before, news reports stated.

The Schatzes waived a preliminary hearing in June. They elected instead to go directly to trial. Their trial, which could run three weeks, is scheduled to start Nov. 1, with pre-trial proceedings set for Oct. 21 and Oct. 28. The couple meanwhile remains in custody in lieu of $2 million bail each.

Kevin Schatz is represented by Oroville attorney Michael O. Harvey. Harvey has yet to return telephone inquiries seeking comment.

Elizabeth Schatz is represented by Chico attorney Dennis Latimer. Latimer was unavailable for comment Friday.

Ramsey has said he plans to call the Schatz children as witnesses during the trial.

Judge Kirsten A. Lucena is currently assigned to preside.

PI's plea deal resolves cop confrontation

2010-07-14T09:52:00.000-07:00

by Tom Nadeau

Private eye Jason Littlepage entered a negotiated plea of no contest in Yuba County Superior Court Monday to a charge of disturbing the peace in connection with a March 18, 2009 incident.

The nolo contendre deal ended a year-long dispute with the Marysville Police Department and represented a significant retreat by the district attorney from the prosecution’s original allegation that Littlepage had been drunk and had obstructed cops responding to an on-going domestic dispute.

Littlepage was supposed to go to trial that day in the matter of People v. Littlepage, YCSC #09-273, but after four hasty behind-closed-door sessions Littlepage’s attorney, Jesse Santana, and Deputy District Attorney Brad Enos had worked out the deal presented to Judge James F. Dawson.

The new arrangement called for the originally charged misdemeanors to be reduced to a single minor infraction. Additionally, the several fines, fees and penalties usually imposed were cut from about $750 to $60.

If no further incidents occur over the next 12 months, Littlepage, who operates as Superior One Investigations, license #23633, may ask the court to strike the entire event and resulting infraction from his record, Dawson noted.

For his part of the deal, Littlepage got to vent for the record some of the anger he felt over how MPD officers had handled the matter.

How it happened ...

The cops’ version of what happened March 18, 2009 was stated in the “peace officers affidavit of probable cause” filed in connection with this incident. It said:

“MPD officers are investigating domestic violence call with two uncooperative and argumentative persons. Jason is friends with one of the involved parties. Jason walk[ed] up behind one officer and refused to leave after being told to. Jason causes both officers to divert from original persons to deal with him as he is screaming and creating disturbance. Jason is intoxicated and unable to care for own safety.”

Littlepage’s viewed things otherwise.

According to Littlepage, he was at home when he got a telephone call from one of the persons involved in the family dispute – a friend – who asked him to come and pick up a minor child and take care of him while the father dealt with the situation.

Littlepage approached the friend’s house on foot to find one officer outside the residence.

“I did not go there to confront an officer. I was there to pick up a kid,” Littlepage told the court.

But things went downhill. Fast.

“As I approached, one of the officers turned [on me] and placed his hand on his weapon. I put my hands up” fearing, he said, “this was going to be another Oscar Grant.”

Littlepage objected to the event in general and to the charges filed against him in particular, calling the police allegations “a mistake of fact.”

“I reluctantly take this plea,” he said. Among the factors in his decision were the mounting legal costs, he said.

Littlepage is a well-regarded local investigator. His attorney, Jesse Santana, is a prominent lawyer currently involved separately in People v. Santana, Vasquez, a high profile case also involving the Marysville Police Department and Yuba County District Attorney.

After the hearing, Notable Trials spoke to the friend, Skip Goldberg, who had called Littlepage for help.

The scene was tense, naturally – some furniture had been been tossed out of the house, etc.

“Jason told me to stay in the house. He would be over. Being inside the house, I couldn’t see what was going on with the police when Jason got here,” Goldberg said.

Following the resolution of the court matter, Littlepage release a concluding statement regarding the whole affair. He said:

I am happy that this case has been resolved. I maintain my innocence as to how the charges were originally filed against me, as believe that the State came to realize the matter was serious and that Officer(s) Miller and Stricker were out of line in their actions that day.

I reluctantly accepted the deal, on conditions that I may address the Judge, on the record in an effort to orientate the court to the criminal actions of Marysville Police Officers Miller and Stricker.

This brings this matter to a close and allows me to refocus my efforts on defending the constitutional rights of the accused in our criminal justice system.

MC Hagins, not the happiest sort of story

2010-07-02T20:03:00.001-07:00

Marcus Charles Hagins, 19, of Elverta was sentenced to what figures to be about 27 months in state prison for the home invasion and attack on a girl in Plumas Lake Yuba County about a year ago.

The victim and her parents lobbied Yuba County Superior Court Judge Kathleen O’Connor for a harsher sentence, but the specific verdicts by the jury limited O’Connor on what she could impose.

In fact, O’Connor levied the maximum possible sentence, despite defense attorney Michael Bowman’s persuasive argument for a lighter term.

The parents urged O’Connor to consider the considerable trauma that their daughter suffered during and after the attack. Life would no longer be the same for any of them, they said.

The father admitted Hagins had no previous record. “Not even a parking ticket,” he said.

Nevertheless, a full force sentence was deserved, the father said, because of the insidiousness of the attack.

A Yuba County jury found Hagins innocent of two of the five crimes he was originally charged with in connection with the 2009 home incursion. He was found guilty of three related lesser charges.

This mixed verdict was particularly noteworthy, indicating as it did various opinions among the jurors.

Hagins was to be sentenced Monday, but victim family members could not be present. O’Connor therefore delayed the sentencing until today.

Following that earlier hearing, Chuck Sylvia, the foreman of the jury explained to reporters how it was that the jury reached its verdict.

The whole event was certainly regrettable to say the least, Sylvia said. But the victim and the defendant both knew each other and the victim suffered no significant physical harm. Moreover, the entire event transpired in less than 10 minutes.

Sylvia said that the jurors all felt bad about it, but the evidence did not seem to support the seriousness of the crimes charged.

Instead of spending his life in prison, the Hakins is now looking at doing just over two in state prison -- all factors and sentencing rules considered.

Prosecutor Deputy District Attorney Jennifer Dupré-Tokos argued at length for a stiffer sentence and O’Connor appears to have slammed Hakins with then most time available under current state sentencing rules.

But no bed of roses...

But his future life is not going to be a bed of roses for Hagins, to say the least.

Besides doing 27 months hard time in a state prison system in which sex offenders have a rough row to hoe.

From now on he will be forever required to register as a sex offender, which means serious limitations will be imposed on his lifestyle.

Hagins will be required to register with authorities on his birthday each year. He will not be able to live in certain neighborhoods. And he will subject to search and seizure on demand by any law enforcement agency.

Griesa cuts a deal; sentencing in 2 months

2010-06-16T11:26:00.000-07:00

by Tom Nadeau

The beleaguered Joseph Griesa canceled Tuesday a second trial in Yuba County Superior Court on charges relating to his alleged conduct with under-aged female employees at Mitchell Towing Service.

After some last-minute waffling and sidebar dickering between his attorney, the prosecutor and the judge, Griesa told visiting Judge Ersel Edwards that, all things considered, he would settle instead for a light sentence for the 10 crimes he’s already be convicted of.

The most serious penalty Griesa will face when he returns to court for final sentencing at 11 a.m. Aug. 20 stems from count #11 in his original 18-count charge sheet. That count charged him with Penal Code Section 278:

Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.

The other heavy-duty penalty Griesa is looking at is he will now forever more have to register authorities as a sex offender.

All other penalties would be waived in the arrangement, Deputy District Attorney John Vacek said.

Other issues...

Vacek had initially insisted that Griesa, 45, also give up any right to appeal. Having to forsake that last, sinking-ship hope appeared to be what prompted Griesa’s dramatic 11th-hour stall. Following some in-chamber discussions, Vacek dropped that demand.

Informed court-watcher Sam Pierce noted that Vacek had actually conceded very little, since any appeal Griesa might mount would, based on the appellate court’s record, probably be rejected anyway.

Defense attorney Kenneth Rosenfeld said Griesa will present character references and other exculpatory information at the August sentencing hearing.

Griesa hopes to persuade visiting Judge Ersel Edwards to hand down a sentence that involves a multi-year probation period and a possible middle-term prison sentence of two years, which would be suspended pending successful completion of probation.

It's been a tough couple of years

Griesa was tried last year onPeople v. Griesa. That proceeding ended with a decision split three ways.

He was found guilty of 10 charges relating to: annoying a child; contributing to the delinquency of a minor; unlawful detention; failure to report earnings, and; failure to pay taxes.

He was found innocent of four criminal counts, including sexual battery, penetration with a foreign object and oral copulation with an underage person.

A hung-jury mistrial was declared on the remaining charges. The remaining charges included allegations of indecent exposure, intimidating a witness, sexual battery, false imprisonment and assault with a deadly weapon.

It was on those last charges that Griesa was to be tried, but his Tuesday agreement ended that fight.

Prosecution pleased; defense reconciled

Vacek seemed pleased with the outcome. The most serious charge stuck; the court’s time was saved; justice was served over all, and; best of all – after two years of paperwork fighting that requires 20 pages of computer printout to list – the matter of People v. Griesa was finally over.

“It closes a chapter,” defense attorney Rosenfeld agreed.

Griesa was clearly irked at how life had treated him and seemed ready comment, but Rosenfeld cautioned him not to. Hence, we have nothing straight from the defendant.

However, Rosenfeld had some interesting observations on the whole circus surrounding the intricately linked cases of People v. Griesa and People v. Santana, Vasquez.

Those cases have so far stretched over two years, directly involved several prominent attorneys, has riveted the attention of lawyers up and down the state and the end is not expected soon.

This is a 'Big One'

So important is this seemingly endless Saturday afternoon double feature horror show, it will likely lead to a “landmark” published opinion by the state appeals court and possibly some kind of written opinion by Attorney General Jerry Brown.

In California state law, you can’t get much higher that.

As background: Yuba County District Attorney Pat McGrath sought and got a 2008 grand jury indictment of attorneys Santana and Vasquez for alleged bribery and ethical violations in their handling of a sex claim one “SA” had brought against her boss, Griesa.

It allegedly involved a payment of $100,000 that was never consummated.

While settlements may be fairly common in civil cases, they aren’t in criminal cases, Rosenfeld explained.

Having read through the documents in both cases and followed the proceedings closely since taking over as defense attorney, Rosenfeld called it, “kind of a unique situation.”

'Someone is lying'

From a professional point of view, Santana and Vasquez may have acted wrongly, Rosenfeld said, but he reserved any further comment until the case was decided.

But he did offer a plainly-worded opinion based on his direct observation of attorney Timothy Evans’s testimony at one pre-trial hearing on Santana, Vasquez.

“It was nonsensical.” Rosenfeld said.

Rosenfeld did offer a general conclusion about the mammoth legal case.

"Someone is lying," he said.

For the moment, the next action in People v. Santana, Vasquez remains somewhat vague.

Visiting Judge John Darlington, who is handling the matter, has set for 1:30 p.m. Aug. 8, but he may issue his crucial ruling on a defense motion to dismiss the case as early as some time this week.

Re-trial of People v. Griesa set to open, but a negotiated plea may be possible

2010-06-15T05:19:00.000-07:00

The re-trial of People v. Joseph Patrick Griesa, case #08-458 is scheduled to open today in Yuba County Superior Court, with the defendant facing multiple felony counts of eight separate charges.

But defense mutterings leave out the possibility that a negotiated plea may be possible.

Griesa, 45, was also a grand jury witness in the still pending matter of People v. Santana and Vasquez.

The charges he faces in this trial are intricately linked to those proceedings in which he invoked his constitutional right to remain silent.

Griesa faces many charges, long years in prison...

A total of 18 felony charges were originally filed in People v. Griesa in October 2008 . All were prosecuted.

That trial ended June 25, 2009. He was found guilty of 10 charges relating to: annoying a child; contributing to the delinquency of a minor; unlawful detention; failure to report earnings, and; failure to pay taxes.

Griesa was found innocent on four criminal counts, including sexual battery, penetration with a foreign object and oral copulation with an underage person.

A mistrial was declared on the remaining charges due to a hung jury. The remaining charges included allegations of indecent exposure, intimidating a witness, sexual battery, false imprisonment and assault with a deadly weapon.

It is these unresolved charges he now faces.

Judge seals Griesa's court record

The Griesa case file was sealed prior to his original trial. Only the verdicts were available to the public. Apart from the verdicts no other detailed information was available.

A former owner/operator of Mitchell Towing Service with local government contracts and at one time a law enforcement officer with the Sutter County Probation Department, Griesa is something of a public figure.

The summary of the adjudicated charges and the remaining court actions relating to same now stretch into a 20-pages and print-out.

The re-trial is expected to open at 8:30 a.m. today in Yuba County Superior Court, with visiting judge Ersel Edwards presiding. However, defense attorney Kenneth L. Rosenfeld’s cryptic mutterings to the press suggest a negotiated plea of some sort may be in the offing.

The California Penal Code sections prosecutors allege he violated in this case specifically include: PC 314.1; 136.1(c)(1); PC 136.1(a); 136.1(b); PC 243.4(a); 243.4(e); PC 236/237, and; 245(a)(1).

Here are the specific Penal Code charges:

PC 314.1: Every person who willfully and lewdly … Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby.

PC 136.1(c)(1): Every person doing any of the acts described in subdivision (a) or (b) knowingly and maliciously under any one or more of the following circumstances, is guilty of a felony punishable by imprisonment in the state prison for two, three, or four years under any of the following circumstances: (1) Where the act is accompanied by force or by an express or implied threat of force or violence, upon a witness or victim or any third person or the property of any victim, witness, or any third person.

PC 136.1(a): Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison.

PC 136.1(b): Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison.

PC 243.4(a):Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of sexual battery. A violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding two thousand dollars ($2,000); or by imprisonment in the state prison for two, three, or four years, and by a fine not exceeding ten thousand dollars ($10,000).

243.4(e): Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery, punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. However, if the defendant was an employer and the victim was an employee of the defendant, the misdemeanor sexual battery shall be punishable by a fine not exceeding three thousand dollars ($3,000), by imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment. Notwithstanding any other provision of law, any amount of a fine above two thousand dollars ($2,000) which is collected from a defendant for a violation of this subdivision shall be transmitted to the State Treasury and, upon appropriation by the Legislature, distributed to the Department of Fair Employment and Housing for the purpose of enforcement of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code), including, but not limited to, laws that proscribe sexual harassment in places of employment. However, in no event shall an amount over two thousand dollars ($2,000) be transmitted to the State Treasury until all fines, including any restitution fines that may have been imposed upon the defendant, have been paid in full.

PC 236: False imprisonment is the unlawful violation of the personal liberty of another.

PC 237: False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.

PC 245(a)(1): Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

How to buy a judge (and fairly cheap, too)

2010-06-12T04:30:00.000-07:00

Christopher Brauchli totes up the bucks at Counterpunch:

One of money’s more amusing appearances was in the 1980s when the Texas Supreme Court decided a contract dispute between Pennzoil and Texaco in favor of the former with the result that Texaco settled with Pennzoil for $3 billion. Following entry of that judgment, wags observed that in one year the lawyers for the winning side had contributed in excess of $300,000 to members of the court for their reelection efforts whereas lawyers for the losing side had contributed less than $200,000. Only a cynic would believe that the contributions affected the justices’ decision, at least until West Virginia came along.

But if you follow the money...

Capperton vs. A.T. Massey Coal Company, decided in 2009, demonstrated that even the U.S. Supreme Court, a majority of whose members rarely take offense when money takes control, took offense.

Brent Benjamin, a West Virginia Supreme Court Justice, accepted $3 million in campaign contributions from Don Blankenship, the owner of A.T. Massey Coal Co. (Massey was most recently in the news, before being eclipsed by BP, when an explosion at one of its mines with countless safety violations killed 29 miners.) Justice Benjamin saw no conflict in accepting $3 million in campaign contributions from Mr. Blankenship or entities controlled by him and then, in two separate appeals, casting the deciding vote in favor of his benefactor. (A slim majority of the U.S. Supreme Court saw it differently and said he had a clear conflict and sent the case back to the W. Virginia Supreme Court where presumably Justice Benjamin will stay home when the case is again heard by the court.) A report by Justice at Stake discloses that in 2000 candidates seeking Supreme Court seats in the state of Alabama spent slightly more than $12 million. In 2006 that figure was $13.4 million and in 2006 the candidates seeking to become that state’s chief justice raised $8.2 million. Between 2000 and 2008, candidates for state Supreme Courts positions throughout the country where contested elections were permitted, spent close to $200 million.

Griesa's felony harassment trial set to go,amid hints that sides may have cut a deal

2010-06-11T14:17:00.000-07:00

The second compartment in the legal portmanteau of People v. Joseph Griesa and People v. Santana and Vasquez is set to open in Yuba County Superior Court Tuesday, despite doubts it will.

There are several signs flashing on the courthouse marquee that a deal may be imminent in the Griesa matter.

For one thing, Sacramento defense attorney Kenneth Rosenfeld was either hedging his bets or milking the situation for suspense, when he dodged Appeal-Democrat reporter Rob Young’s question whether the trial would finally start next week, or not.

“Anything could happen,” Rosenfeld coyly replied.

But the options may be narrowing...

Griesa faces his second trial on charges arising from sexual harassment complaints by one “SA,” a 17-year-old dispatcher at the Griesa-owned Mitchell Towing Service.

Griesa was convicted last year of misdemeanors cited in that complaint, but the whole jury could not arrive at a verdict on the felony charges involved in the same case. This second Griesa trial deals with charges leftover from the first trial.

Those trials and the People v. Santana, Vasquez matter are locked together, body and soul.

DA, grand jury interrupt negotiations

Attorneys Santana (representing “SA”) and Vasquez (for Griesa,) were in the midst of negotiating a financial settlement in a civil suit “SA” had proposed when the Yuba County District Attorney jumped in to take the matter to the grand jury instead.

Griesa’s testimony to the grand jury led Santana and Vasquez being indicted on felony charges, including bribery. Santana and Vasquez have vigorously denied the allegations.

The attorneys fought back with a slew of motions that have kept the matter mired in pre-trial hearings for two years. Consequently, not even a preliminary hearing has been held yet for a judge to rule on whether there is sufficient evidence to merit a trial in Santana, Vasquez..

The most recent action in Griesa was a ruling last week denying a defense motion to disqualify an out-of-town judge from trying the case.

Visiting judge rules that move out

San Joaquin County Judge Bernard Garber ruled retired Nevada County Superior Court Judge Ersel Edwards was sufficiently impartial to proceed with the case.

During his tenure on the Nevada County bench, Edwards’ earned a reputation not only for being fair and impartial, but also for not taking any guff or dilly-dallying from attorneys.

In a written response to the motion to recuse him from the Griesa case, Edwards griped that, “The only apparent affirmative preparation the defense has made in this case is to prepare motions to recuse the district attorney and the judge.

Moreover, he hinted he was suspicious of Rosenfeld’s timing of his motions.
“Each of these motions have come on the eve of scheduled jury trials,” Edwards wrote.

The tone and tack of the motions may not have pleased him, either.

As Young reported:

In motions Edwards has not yet ruled on, Rosenfeld contends that Griesa was "duped" into cooperating with the Yuba County District Attorney's Office; that the case cannot proceed until a different judge rules on motions in the case of two attorneys charged with trying to bribe the girl; and that that trial must be postponed to protect Griesa's constitutional rights.

Edwards is expected to rule on those motions Tuesday.

Some think this game may be called for rain

Meanwhile, there is hallway chatter about Griesa “pleading out” his case, possibly as early as Tuesday. There are also signs that the community in general is getting tired of hearing about this two-years-and-counting case.

For instance, readers commenting on Young’s recent article about the motion to disqualify the judge, suspicious readers had this to say:

So here we have a case of a defense attorney assuring himself a longer stint of employment by trying to drag this tired old thing out even further. Guess times can be tough for lawyers too...
-- Ninkasi

And, even more to the point in terms of local politics, another reader insisted:

This must be costing Dad a Fortune.
-- Thinker

Griesa is the son of the man who started the Mitchell Towing Service and there have been lingering rumors there may have been a falling out over the expenses being run up in his defense.

If the money is drying up for Griesa, now at least in his third attorney, that could explained Sacramento-based Rosenfeld’s hint that a concluding deal may be in the works.

These two cases, Santana, Vasquez and Griesa have been keenly followed by family members and long-time professional associates of the two attorneys and the legal community, up and down the state.

There is an unfailing peanut gallery of supportive attorneys at all Santana, Vasquez hearings. Others not attending are cagey in what they will say about it. The current president of the Yuba-Sutter Bar Association has yet to return a request for comment on this courthouse-consuming controversy, notwithstanding its serious nature.

by Tom Nadeau, with Sam Pierce

Sacramento jury finds man guiltyin 'unique' nitrous oxide DUI case

2010-06-09T17:24:00.000-07:00

A Sacramento jury found Jeffrey Hutchings guilty Wednesday of driving under the influence of nitrous oxide in an incident variously called "unique" and ”one of a kind.”

The trial in People v. Hutchings,#10T00976, started Monday before Superior Court Judge Lawrence Brown and ended Wednesday afternoon with a swift verdict of guilty from a jury of eight men and four women.

The trial, though comparatively insignificant in the grand scheme of things, considering there were six murder trials underway at the same time in the same courthouse, was of keen interest to inveterate court-watchers who termed it "unique" and "unusual."

Brown mentioned during the trial that pre-trial research could locate no previous case similar to this one, which therefore made it, in its own small way, one of a kind.

Careening car on road, canisters on floor...

Hutchings was arrested by Folsom police about 7:30 p.m. Jan. 16 just off Highway 50 near White Rock and Scott roads after being followed there by an off-duty security guard who was simultaneously cell phoning authorities about Hutchings’ erratic driving.

Hutchings was tracked until he stopped the vehicle he was driving in the middle of the narrow road. Hutchings was at the wheel, with an unnamed passenger in the seat beside him, investigators reported.

The vehicle, an Audi, was owned by an unnamed “girl friend” of Hutchings. Neither the girl friend nor the passenger appeared in the trial.

The first lawman on the scene was a Sacramento County Sheriff’s Office detective who happened to be in the vicinity when the initial call came in.

Coincidentally, the detective was an experienced drug enforcement trainer. He said Hutchings displayed several signs similar to those observed in people under the influence of certain “inhalants” such as nitrous oxide.

NO found

Among these signs was Hutchings’ initial failure to respond immediately to requests and questions, but then his quickly return to a normal-seeming coherence in the few minutes it takes for the effects of nitrous oxide to wear off, the detective said.

Nitrous oxide (NO) commonly known as laughing gas, is a chemical compound with the formula N2O. It is an oxide of nitrogen. At room temperature, it is a colorless non-flammable gas, with a pleasant, slightly sweet odor and taste. It is used in surgery and dentistry for its anesthetic and analgesic effects. It is known as "laughing gas" due to the euphoric effects of inhaling it, a property that has led to its recreational use as a dissociative hallucinogen. -- Wikipedia

Responding Folsom police officer Paul Rice took over the investigation. He reported finding scads of expended NO canisters littering the floor of the driver and passenger section of the Audi.

Some were found under the brake and accelerator pedals.

Among the items found

In his closing argument Darren K. Indermill, a deputy attorney general temporarily working with the Sacramento prosecutor on an experience-gaining program, recounted the items found in the vehicle.

The items included 42 expended canisters of NO and two unexpended canisters of NO. Also included was one expended NO still attached to the “cracker” device that breaks the seal on the thumb-sized canister containers to allow the NO gas to inflate an attached balloon, from which the user inhales the high-producing gas.

Also discovered in the vehicle were two full, unopened cartons of unexpended NO canisters and many more unused balloons.

Found, too, was a receipt for $32.65 from the “Twisted Smoke Shop” which investigators later learned sold NO paraphernalia similar to that found in the vehicle. It was found in Hutchings’ pocket. The time and date stamp on the receipt was for just one half hour before the traffic stop.

A spirited defense

Assistant Public Defender Melissa Whitehead called no witnesses and Hutchings did not testify, but the young defense attorney put on a spirited closing argument, even eliciting a friendly laugh from the jurors at one point in her delivery..

Whitehead reminded the panel that the off-duty guard following the vehicle did not report seeing the occupants passing anything between themselves, something which would appear to be necessary considering how the inhalants are used.

Based on the descriptions given by detectives and criminalists the process of inhaling the gas under these on-the-road circumstances would have required one person to complete the inflating process while the other person operated the vehicle. Then the driver would have had to occupy himself, at least briefly, with leaning over to snort the gas.

The defendant, who is said to be in his latter 20s was quiet (not to be confused with blasé) throughout the proceedings. He came in casual dress, did not testify and, in fact, appeared to say nary a word during the three-day event.

Although the prosecutor’s and the defense attorney’s personal styles differed markedly, both were effective counsels.

Dressed in a black suit and light-colored shirt and tie, Indermill walked though the mounting evidence doggedly.

Garbed in a black suit jacket and slacks and her light hair held in a pony tail, Whitehead talked fast and coherently in her closing argument.

Both used projected slides on a screen to itemize their points for the jury.

The receipt in the pocket was perhaps persuasive

But alas – for Whitehead and Hutchings, anyway – the jurors found the pile of evidence presented by Indermill to be insurmountable.

The erratic driving, the odd behavior, the used opened canisters of NO and the related gas-inhaling tools, the many balloons and, of course, the smoke shop receipt in the suspect’s pocket, all added up to an unfavorable verdict for the defense.

A sentencing date and time and the potential penalties that Hutching faces, were not yet available.

2 items of interest: Griesa, Hutchings

2010-06-09T05:54:00.000-07:00

Two items of interest to court-watchers are working: the state prosecutions of Joseph Griesa in Yuba County and Jeffrey Hutchings in Sacramento County superior courts.

Both were in court Tuesday; both seem to be reaching some sort of conclusion. Fuller stories will be available tomorrow. For the moment, though, here is a brief recap.

An impartial judge appointed by the state Supreme Court has rejected a defense motion to recuse a visiting judge from trying the case of People v. Joseph Griesa.

Griesa, a former tow company executive, is now in his third or fourth lawyer, his second trial and is still embroiled in legal problems stemming from allegedly sexually bothering under-aged female employees at Mitchell Towing Company.

His disputed testimony in also a key issue in the separate but linked matter of People v. Santana and Vasquez.

Griesa’s attorney, Kenneth Rosenfeld of Sacrament, had claimed that out-of-town judge Ersel Edwards might be too prejudiced against Griesa to rule fairly in Griesa’s second trial in the sex allegations case.

San Joaquin County Judge Bernard Garber ruled Tuesday that while Edwards may have set views on how the Griesa trial should be conducted, it does not mean he is prejudiced against any case the defense might present.

The trial in that matter is now expected to continue, but only after a number of last-minutes motions have been dealt with in another hearing Yuba County Superior Court hearing slated for June 15.

Notable Trials correspondent Sam Pierce has been following the Griesa proceedings closely. We’ll have a fuller joint report tomorrow on what’s up with that controversial case.

Meanwhile, another case of interest has suddenly popped up in Sacramento County Superior Court.

Court clerks, lawyers and others tuned to the everyday doing in that courthouse steered Notable Trials to a new and rather odd trial now underway before Judge Lawrence Brown in Department 38.

While some called the matter of People v. Jeffrey Hutchings “first of its kind,” prosecutor Darren K. Indermill of the state Attorney General’s Office, would only go as far as calling it “unusual.”

Hutching is charged with misdemeanor driving under the influence of the “rave” substance nitrous oxide in January of this year.

The circumstances described by several prosecution witnesses, primarily arresting and investigating officers from a variety of local law enforcement agencies certainly did make it seem unusual.

The officer who first stopped Hutchings just off Highway 50 near Folsom called it “unique.”

Some 40 or so expended canisters of nitrous oxide were reportedly found littering the inside of the car operated by Hutchings with a companion passenger.

Two unexpended canisters and another box of multiple unexpended canisters were founding the vehicle after it was stopped for weaving drastically around the roadway.

I came into the case late and not all details were immediately available, but they are expected to be recapped in closing arguments scheduled to occur today.

Leary requests, gets 4-week trial delay

2010-06-08T18:42:00.000-07:00

The defense asked for and got a delay Tuesday in the pending matter of People v. Michael Leary, #09F07685 the former Sacramento jail commander suspected of fraud, forgery and other related felonies.

The prosecution quickly bowed to the postponement request so Sacramento County Superior Court Judge Gary Ransom moved Leary’s last pre-trial hearing to 1:30 p.m. July 6. There is now no firm start date for the trial.

Outside of court, defense attorney William Portonova dodged being specific about exactly why he’d sought the delay.

Problems may have arisen in rounding up needed documents or materials and unnamed individuals may have experienced a change of mind and/or heart in recent weeks, Portonova alluded.

“Time wounds all heels,” he added, cryptically.

Black suit; ready smile...

Leary, 49 – dressed neatly in a sharp black suit and red shirt with no necktie – smiled at the mention. He appeared to be in good spirits. Observed leaving the courthouse about an hour later he still appeared to be engaged in jovial conversation with companions.

The former Sacramento sheriff’s lieutenant faces four felonies allegedly committed during a disputed property transfer involving the transfer of title for a $610,000 residence at 3301 Marina Cove Circle, Elk Grove.

The other party in the troubled transfer was Leary’s former live-in girlfriend Alyc K. Maselli.

Leary pled innocent to all charges. If convicted, he could be looking at 12 years in state prison and a fine of up to $75,000. He remains free on bail.

A 27-year veteran of the Sacramento County Sheriff’s Department, Leary left his high-ranking post when he was arrested.

Leary was also an Elk Grove city councilman for 10 years before losing a re-election bid. Before that he was Elk Grove community services director.

He and Maselli were reportedly planning marriage when their falling out occurred over a banking dispute in early 2008, court documents showed.

Leary’s last pre-trial hearing 1:30 Tuesday

2010-06-07T09:29:00.000-07:00

Former Sacramento County sheriff’s Lt. Michael P. Leary is slated to be in court tomorrow for what is likely to be his last pre-trial hearing before he stands trial for several felonies allegedly committed during a disputed property transfer.

Trial of the one-time Elk Grove city council member is expected to begin in superior court June 29.

He is looking at four criminal counts springing from a challenged transfer of title for a $610,000 residence at 3301 Marina Cove Circle, Elk Grove.

The 49-year-old Leary was booked and arraigned in October 2009 on charges of grand theft fraud and forgery stemming from the transfer between himself and his former live-in girlfriend Alyc K. Maselli in 2006.

Leary has pleaded innocent to all charges. If convicted, he could be sentenced to 12 years in state prison and fined $75,000. He remains free on bail.

A woman scorned; her revenge delayed...

The matter of People v. Leary, #09F07685 has been stalled for months by various pre-trial motions and hearings.

Leary, a 27-year veteran of the Sheriff’s Department, left his high-ranking post upon his arrest. He was an Elk Grove city councilman for 10 years before losing a re-election bid. Before that he was Elk Grove community services director.
He and Maselli were reportedly planning marriage, but fell out during a banking dispute in early 2008, court documents indicate.

Leary’s attorney, William Portanova of Sacramento, has characterized the couple’s present mise-en-scène as the sort of unfortunate misunderstanding that can crop up when coup-les try to manage their own division of property during a marital break-up without a lawyer.

Leary is set to be in Sacramento Superior Court Judge Gary Ransom’s bailiwick at 1:30 p.m. Tuesday.

Fed judges who may rule on oil spillshown to have financial links to BP

2010-06-07T05:55:00.000-07:00

More than half of the federal judges in districts where the bulk of Gulf oil spill-related lawsuits are pending have financial connections to the oil and gas industry, complicating the task of finding judges without conflicts to hear the cases, an Associated Press analysis of judicial financial disclosure reports shows.

Thirty-seven of the 64 active or senior judges in key Gulf Coast districts in Louisiana, Texas, Alabama, Mississippi and Florida have links to oil, gas and related energy industries, including some who own stocks or bonds in BP PLC, Halliburton or Transocean - and others who regularly list receiving royalties from oil and gas production wells, according to the reports judges must file each year. The AP reviewed 2008 disclosure forms, the most recent available. -- AP

--
New York Magazine: in prison, Bernie Madoff is ‘free at last’

1861 Colusa courthouse gets improved

2010-06-05T05:31:00.000-07:00

California’s second oldest still-standing county courthouse will soon get some $250,000 in improvements to its interior.

Improvements to the Colusa County courthouse include a new heating system and asbestos abatement that will force some interior changes to the historic courtroom and offices first built in 1861.

The "green" improvements will allow the county to remove the swamp cooling system from the Hall of Records and the row of tiny box air conditioning units from the windows along the west side of the courthouse, which has long-given one of the oldest courthouses in the state a shoddy appearance, county officials said.

"It won't be completely energy efficient," said Supervisor Kim Dolbow Vann. "Because the courthouse is an historic landmark, we can't modernize the windows. But it will still save us a fortune on heating and air conditioning costs." --Tri-County News

The $250,000 includes about $45,000 for removing the asbestos, a process that will, unfortunately, require lowering the high-ceiling in what was once the district attorney’s office...

The DA moves to new offices in the Wintun Building on Fifth St., a new structure whose construction was paid for casino impact money.

A study in the 1970s linked asbestos to lung and esophageal cancer. Its removal from public buildings was ordered.

The exterior of the courthouse, however, will remain largely unchanged, apart from some cosmetic freshening up.

Work is expected to begin immediately to avoid the hottest part of the summer, which in Colusa County, located in northern Sacramento Valley, often means temperatures in the low 100s.

The building houses the courts and the archives, it also provides a thumbnail sketch of Colusa County history.

And, yes, I did know you would ask, "So, if Colusa County’s is only the second oldest courthouse in continuous use in California, where is the oldest?"

That would be in Mariposa County.

If you happen to be, like me, something of a courthouse freak, here is a useful link that will give you official photos of all of California’s courthouses.

Santana judge nixes immunity; ponders defense move to dismiss

2010-06-04T11:16:00.000-07:00

Waiting to hear what Judge John Darlington’s latest action would be in People v. Jesse Santana and David Vasquez, case #08-825, took longer than learning what it was.

Defense attorney Michael Barrette arrived 30 minutes late in Yuba County Superior Court Department #4 , while Darlington was done ruling on two critical defense motions in 20 minutes.

Kibbitzers in the jam-packed gallery speculated that Barrette had been unavoidably delayed by a reported traffic jam on one of the two bridges between Yuba City and Marysville.

The rulings, one by one...

First, Darlington denied a defense motion that he grant witness Joseph Griesa some form of immunity – transactional or use – to get him to explain under oath what, if anything, authorities may have promise him to get a grand jury testimony to indict attorneys Santana and Vasquez on felony charges.

The charges against the two respected Yuba-Sutter lawyers arise from allegations regarding their roles as attorneys for the parties in a lawsuit that an employee – “SA” – had threatened to file against Griesa.

Santana and Vasquez are accused of breaking the law and violated legal ethics by arranging a $100,000 payment to settle a teenage girl’s sexual harassment lawsuit.

What makes this case so interesting to lawyers – at least seven were present in the gallery yesterday – is such settlements are common in plaintiff-defendant negotiations.

Darlington cited one provision of the US Constitution and several prior precedent-setting appellate rulings in explaining why he was denying the defense motion.

In short, Darlington appeared to be saying that granting such immunity would put the court on the edge of a legal precipice, and he was “unwilling to step off that cliff.”

Griesa and his Sacramento attorney Kenneth Rosenfeld were present Thursday. Rosenfeld pressed Darlington to clarify whether this ruling meant Griesa would no longer be needed in this case.

Darlington excused Griesa, but that excusal did not end Griesa’s legal problems.

Griesa faces a second Yuba County criminal trial, based on allegations that he had acted improperly with under-aged girl employees at his Mitchell Towing Service.

A trial on that separate but related case, People v. Griesa, #08-458, is scheduled to start Tuesday, June 8.

Retired Nevada County Judge Ersel Edwards was appointed to preside over that trial, but Griesa filed a motion May 21 to disqualify him. It is not yet known how that motion fared. That issue may be dealt with Tuesday.

The second issue Darlington addressed was a defense motion to dismiss Santana, Vasquez entirely.

That constantly expanding case was first filed two years ago and has so far not even reached arraignment, much less trial.

So humongous has the legal paperwork been in Santana, Vasquez that Darlington Thursday called it “the Moby Dick” of legal cases.

Darlington, also retired from the Nevada bench, said he was not yet ready to rule on that issue and took it under advisement.

He set a no-later-than, date-certain hearing on the ruling for 1:30 p.m. Aug. 8.

Whichever way Darlington goes – dismiss, or not dismiss – it is unlikely to end this perpetual motion case. Either way, the losing side is expected to take it up to the 3rd District Court of Appeals in Sacramento.

From there, who knows?

'Crucial' Santana, Vasquez case resumes today in Yuba Superior

2010-06-03T04:34:00.000-07:00

The parties return to Yuba County Superior Court today to finish up a major hearing in the matter of People v. Santana, Vasquez.

Attorneys Jesse Santana and David Vasquez have yet to be arraigned on the alleged charges of bribery, conspiracy and obstruction of justice originally brought some two years ago.

The case got bogged down yet again last month when a key witness “took the 5th” in order to avoid commenting on his part in the legally crucial case.

With his own separate, but related criminal trial expected to open in the next week or two Joseph Griesa invoked his right to remain silent in an evidentiary hearing on allegations that two lawyers broke the law and violated legal ethics by arranging a $100,000 payment to settle a teenage girl’s sexual harassment lawsuit.

Griesa initially objected to testifying at all on a defense “points and authorities” motion in People v. Jesse Santana and David Vasquez, case #08-825.

Griesa’s Sacramento-based attorney, Kenneth L. Rosenfeld, told Judge John Darlington that any questions defense attorneys might have for his client had either already been asked and answered in grand jury hearings, or he would decline to answer them now under provisions of the Fifth Amendment to the US Constitution.

Griesa was previously convicted of some charges related to his alleged unlawful sexual conduct with a 17-year-old girl who was working for him at Mitchell’s Towing Service.

A second trial on unresolved charges in that case was expected to begin June 8, but there has been another complication.

Retired Nevada County Judge Ersel Edwards had been named to preside over the Griesa trial, but defense recently filed a motion to disqualify him.

It is not yet known how that motion fared.

Reasons Santana, Vasquez is "crucial" are manifold...

On it hang two law careers, issues impinging on how attorneys may conduct cases and relate to clients and – depending on how it plays out – the reputations of several prosecutors, two district attorneys and at least one recently appointed judge.

The complex legal controversies in this case have already dragged in the state Attorney General's Office, which has two attorneys acting as the prosecutors, because the means and motives of the Yuba County District Attorney's Office have been strongly challenged.

Santana, Vasquez could eventually reach out to force the wider legal communities in California and potentially the US to reassess how civil and criminal law is practiced.

How many are ultimately affected depends entirely on how Darlington ultimately rules on the defense motion when court resumes in Department #7 at 1:30 p.m. today.

Darlington’s ruling could also determine whether this two-years-and-counting case ever does go to trial.

Hagins verdict: surprises all around; innocent of biggies; guilty of lessers

2010-06-02T11:54:00.000-07:00

A Yuba County jury found Marcus Charles Hagins innocent Tuesday on two of the five crimes he was accused of in a 2009 home incursion and bondage incident in Plumas Lake.

He was found guilty of three related lesser charges.

This mixed verdict was particularly noteworthy. Sacramento defense attorney Michael G. Bowman had declined to call any witness or mount any defense other than his closing argument – a dicey strategy seldom dared by any defense attorney, no matter how seasoned.

Instead of spending his life in prison, the 19-year-old Elverta man is now looking at doing as little as four to five years, with credit for one year already served awaiting trial.

Advisors familiar with the ins-and-outs of sentencing terminology said that, with luck, the kid could do even less.

Hagins’ precise prison term depends on how Judge Kathleen O’Connor interprets the sometimes obscure sentencing rules when she hands down the formal sentence 9 a.m. June 28.

The courtroom drama...

O’Connor read the verdicts aloud at 3:47 p.m., formally querying the jurors after each one, “Is this your verdict?”

Each time the jurors assented in one joined voice: “Yes!”

In turn, Judge O’Connor echoed the official words that trace back to the Magna Carta: “So say them all!”

The packed audience was dominated by friends and relatives of the 20-year-old girl victim. They greeted the final verdicts with displays of emotion that ranged from loud crying to blank-faced silence.

They had clearly hoped for a stiffer verdict for Hagins, judging by the way they chatted and joked among themselves during courtroom breaks.

The defendant’s father, Mark Hagins, sat quietly through the reading. No huzzahs from him; no smiles; not even a nod or two for what was probably the fairest outcome the Hagins boy might reasonably expected in this strange and sordid case.

The prosecutor, Deputy District Attorney Jennifer Dupré-Tokos sat stolidly through the reading.

Defense attorney Bowman was also laconic, occasionally muttering hasty explanations of what it all meant into his client’s ear.

The charges enumerated

Had Hagins been found guilty of the main charge, count one – “Rape in concert while armed” – it would have meant life in prison for him. It was padded with a special allegation that could have added five more years to that term.

Conviction on count two – “Burglary in 1st degree with special allegation of violent felony” would have added an unspecified number of additional years.

But Hagins was convicted of lesser versions of three accompanying charges: count three, “Assault with a Deadly Weapon with Great Bodily Injury (by) Force;” a lesser version of count four, “Threat to terrorize;” and count 5, “False imprisonment.”

News that a verdict had been reached came out less than two hours after the jury began deliberating. That seemed a bad sign for the defendant.

Courthouse lore has it that swift verdicts are usually stern.

But then the complications came. Everyone who rushed to the courthouse to hear the verdict had to wait. And wait.

When the jury of nine-women and three men finally came out of the jury room, they departed wordlessly for lunch.

They would be back at 1:30 p.m., the escort bailiff explained.

Verdict forms: voluminous, mystifying

Upon their return, they remained sequestered. Clearly some hitch had developed.

Word came out that the jurors wanted Judge O’Connor to clarify some of the verbiage in the lengthy verdict form.

Lengthy? How lengthy?

After getting the jurors’ questions and plowing through a fat stack of papers, the judge announced her clarifications for instructions given on pages “65, 66, 67 and 68.”

At page 68 the jury instructions were still dealing with count two? Based on appearances, the jury packet looked to reach perhaps 150 or 200 pages, total. No wonder the jury was having a tough go of it.

The jury came in. The judge told them they were not filling out the verdict forms correctly. They were failing to indicate that they had found the defendant innocent of the maximum charge before they signed the forms indicating they had found him guilty of certain lesser charges.

The jury went out. They attended to the details the judge had mentioned.

Then they returned for the formal reading – the reading that so disappointed the victim’s friends and apparently mystified the prosecution.

Reporter’s observations

This reporter’s educated guess on how it was the jurors reached the verdicts they did was that the prosecutor had simply over-charged the crimes, filing the most punitive possible charges and demanding maximum punishment on everything.

This may have been done to satisfy the victim’s family’s thirst for revenge, but clearly it did not sit well with the jurors. The crime the victim suffered was sinister and tacky, to be sure. But, looked at in the cold light of the following morning, no blood was spilled and nothing was stolen or broken.

Moreover, the whole incident was over in 15 minutes. Law enforcement entertained only one possible suspect and had him in hand within hours. His arrest was only delayed because the investigators were waiting for the technical evidence results to come back from the state Department of Justice lab.

True, these may be minor points to someone who has suffered the fear, anxiety and humiliation that a crime as awful as this brings.

But, as Casey Stengel once said, “You go with what you got.”

Wrapping up

Dupré-Tokos was not immediately available for comment.

Bowman spoke briefly. He declined to expand on the exhilaration he must have felt when the verdict was read. All he would say was he understood why the jury reached the verdicts it did.

More courthouse lore: Wise lawyers consider it bad luck to crow before the judge hands down the final sentence. It would be like taunting the Devil.

Bowman was then approached by a woman juror who had hung back as her fellow juror members left.

She shook Bowman’s hand and, judging by the smiles and general comments they exchanged, she appeared to be congratulating Bowman and explaining why she and the others had found the prosecution’s most severe claims unwarranted.

On the courthouse plaza outside, I asked the defendant’s father if he would care to comment on the verdict.

No, he wouldn’t, he said. He had read some my trial stories and felt “they weren’t that favorable” to him.

Well, that’s the trouble with truth. It is seldom found only on one side.

Tom Nadeau

Child's death could mean life termsfor 'disciplinarian' couple in Butte

2010-06-01T06:27:00.000-07:00

A Butte County couple suspected of killing their 7-year-old adopted daughter waived their preliminary hearing last week. They return to court June 24 to learn their trial date.

Kevin and Elizabeth Schatz, of Paradise, each face life prison terms on charges of murder, torture and child abuse for the Feb. 6 death of Lydia Schatz. They are also accused of beating her 11-year-old sister seriously enough to out her in the hospital.

Paradise and Chico newspapers reported:

“Both girls reportedly had whip-like marks, allegedly from being beaten for hours with a quarter-inch plumbing supply line.

The girls were both adopted from an African orphanage about three years ago, along with an infant girl. They joined the Schatz family, which included six biological children.

According to authorities, the Schatzes followed child training and disciplinary methods espoused by Michael and Debi Pearl. Kevin and Elizabeth Schatz both retained attorneys and pleaded not guilty to all charges in March.

The pair is being held in the Butte County Jail in lieu of $2 million bail each.

The Pearls favor a “spank and save” theory of child-rearing in their so-called No Greater Joy ministry, their web site states.

The Pearls also co-authored the book, “To Train Up a Child;” paperback, $7.95, which gets some blistering reviews on Amazon. Consider this hostile, enumerated opinion from someone who signs herself, “R. Craig, ‘Mother’”:

1) The Pearls recommend whipping infants only a few months old on their bare skin. They describe whipping their own 4 month old daughter (p.9). They recommend whipping the bare skin of "every child" (p.2) for "Christians and non-Christians" (p.5) and for "every transgression" (p.1). Parents who don't whip their babies into complete submission are portrayed as indifferent, lazy, careless and neglectful (p.19) and are "creating a Nazi" (p.45).

According to the reviewer, "Barnes and Noble no longer sells this book."

Judge limits news on 'juvie' rape trial

2010-05-31T13:12:00.000-07:00

A Stanislaus judge recently limited media access to the trial of two teenagers accused of sexually assaulting another teen at the county juvenile hall, the Sacramento Bee reported May 22.

Judge Nan Cohan Jacobs was asked by the district attorney’s office to exclude the media to guard the privacy of the 17-year-old victim. The Bee — which is not identifying the victim or suspects because of the nature of the charges and their age — argued the trial should remain open with minor restrictions.

“He’s a vulnerable young man,” Jacobs said of the victim in announcing her decision. ...More@SacBee

It seems judges are getting as high-handed about excluding the press from public trials as street cops are getting arrogant about arresting people who record them in the midst of wrong-doing.

Act I? Afghan vet's severed head found

2010-05-30T12:31:00.000-07:00

As many know, I'm an ardent fan of live theater and dead bodies. When the two become one, I become fascinated.

Eyes glued to the tube, I sent out for food during the O.J. Simpson trial.

This Costa Mesa, Calif. beheading/dismemberment story could be a good one to follow:

LA Times: Costa Mesa police detectives found the severed head of an Army veteran at a Long Beach park, the latest twist in a bizarre double slaying.

The discovery was made Saturday. The victim's hand and arm were found there in recent days.

On Friday, police said a community-theater actor had been arrested in the killing of Samuel Herr, a 26-year-old Army veteran who served in Afghanistan and was attending Orange Coast College. Police allege the suspect dismembered his body and then killed Herr's tutor, Juri Kibuishi, staging the scene as a sexual assault. They said the actor was the one who had invited Kibuishi to the apartment, using Herr's cellphone.

Daniel Wozniak, 27, who lived three floors below Herr, had recently wrapped up a nearly monthlong performance of the musical "Nine" at the Hunger Artists Theatre Company in Fullerton and was to be married Friday at a park in Long Beach, police said. He had financial problems, owed money to several friends and was about to be evicted from his apartment, said Costa Mesa Sgt. Ed Everett. The case broke when they linked Wozniak to ATM withdrawals from Herr's account, police said. ...More@LATimes

The only problem is the link doesn't say whether the mugshot is an old one of the victim or a new one of the suspect.

Sides make final arguments in Hagins -- jury deliberations begin on Tuesday

2010-05-29T10:29:00.000-07:00

Attorneys delivered their closing arguments Friday in the Yuba County Superior Court matter of People v. Marcus Charles Hagins, in which a 19-year-old Elverta man is accused of attempted armed rape, burglary and related violations in a May 15, 2009 intrusion into a Plumas Lake home.

Hagins was prosecuted for allegedly sneaking into the Dark Horse Way home of a girl he knew at 4 a.m. and, surprising her in her sleep.

Disguised in a "hoodie" and mask, he allegedly gagged and trussed the girl up with duct tape and tried to insert a ball gag into her mouth – all actions and tools associated with “BDSM.” He also allegedly threatened her with a knife.

Informed sources describe “BDSM” as a type of role playing between individuals who derive feelings of pain and power and create sexual tension, pleasure, and release from the experience.

The attack was almost immediately interrupted by the girl’s mother who heard the commotion and knocked on the girl’s bedroom door to announce her presence.

The intruder fled the house at 4:10 a.m. as the mother phoned 9-1-1 for help.

Hagins was soon singled out as a suspect. Yuba County sheriff’s detectives questioned him the same day, while local agency and state Department of Justice technicians scoured the Dark Horse Way residence and grounds for clues.

Hagins was subsequently arrested and charged with five criminal counts, including armed rape, burglary in the first degree, assault with a deadly weapon, threat to terrorize and false imprisonment.

If convicted of all charges, or even just the first two (and most serious charges) Hagins could be sentenced to life in prison.

The trial opened May 19 before a jury of nine-women and three men and Judge Kathleen Rose O’Connor.

Deputy District Attorney Jennifer Dupré-Tokos laid the prosecution's case over some five days of testimony.

Perhaps the most incriminating evidence presented against Hagins were the fact that crime scene investigators found his fingerprints on the victim’s bedroom door.

Also bad news for the young defendant were some 8,000 suspicious “hits” that Marysville Police Department Detective Kevin Conde (a specialist in Internet crime) reported finding on Hagins’ personal laptop. They primarily came from commercially available pornographic bondage web sites.

Also found were photographs of girls Hagins knew, photos which had been altered to depict them bound and wearing ball gags. Sample pictures were shown to the jury.

Duprés-Tokos also played a staged pornographic video found on the laptop. It showed a hooded man sneaking into a sleeping girl’s bedroom, gagging her, blindfolding her and binding her in a scene remarkably similar to what allegedly transpired in the Plumas Lake attack.

In her 45-minute closing argument, Duprés-Tokos also noted to the jury that what the attacker in the video said and did was “strikingly similar” to what took place in Plumas Lake.

Duprés-Tokos said she believed the porn video and other bits of evidence showed Hagins not only committed the charged crime, but planned it well in advance.

She reminded the jury that Hagins and the victim had gone shopping at the Roseville Galleria with the victim some seven months before. During excursion, the girl had asked Hagins to hold her purse while she tried on clothes.

When she got home she discovered the key to her mother’s home missing from her key ring.

Other incriminating acts and facts included: Hagins denying ever being in the house where his fingerprints were found; his alleged resistance while being fingerprinted; and the fact that the white car he drove was similar to a car spotted near the victim’s home at the time of the attack.

Dupré-Tokos closed by insisting to the jurors that, based on the evidence, the only verdict they could reasonably deliver was guilty.

Sacramento attorney Michael G. Bowman had declined to give an opening statement or present a defense. He elected instead to rely entirely on a strong closing argument to persuade the jury to not convict Hagins of the list of heavy charges the prosecution had leveled against him.

Bowman sought to convince the impassive jury that Hagins had been over-charged with offenses that had been gratuitously larded with uncalled for “special enhancements” and unnecessarily padded with tacked-on lesser charges.

Bowman did not deny the crimes were serious and that they had occurred. He praised the mother and the victim for their clear-headed conduct during the brief 10 minutes in which their lives were turned upside down.

Rather, he focused on whether the crimes had been appropriately charged, if the evidence actually supported claims that his client had committed them.

Bowman quickly dispensed with the three lesser charges, setting them aside. He preferred to limit his arguments to the two leading charges, which called for the longest sentences. Moreover, it was getting late in the day and the jury and everyone in the gallery were getting tired.

The alleged knife disappeared from the prosecution's case only to re-emerge as a pair of scissors and then vanish entirely from the discussion.

The vague “tall and skinny” description the victim had given of her attacker matched Hagins, the prosecution insisted. But it also matched scores of other young men in the area, Bowman noted.

During the long gap in time between when the key went missing from the victim's key ring and allegedly re-appeared to facilitate the intruder's entry into the victim's home, as the prosecution implied, it could have come into the possession of others.

Most importantly, Bowman sought to make the jury understand the significant difference in law between “general” and “specific” intent.

Did the attacker break into the house with the express intention of raping the victim? Someone who did that was a “dangerous person,” Bowman said.

But during the scant 10 minutes the attacker was in the victim's room he did not grope the victim, or insert his penis, Bowman noted.

Burglary charge was charged, but nothing was taken.

In essence, while the prosecution was free to charge whatever it wanted to, but "you get to decide what is appropriate,” Bowman told the jury.

He recounted for the jurors how juries came to be, with the Irish having a hand in their creation after England had acquired Ireland. It seems the Irish folk did not want to merely rubber stamp charges brought by the king.

The Irish wanted a more active role in what was a just verdict, Bowman said.

"We're [the defense attorney and the jury] in here to protect the accused,” he summarized.

Bowman’s closing argument also took about 45 minutes. He closed with a parable about an Indian chief taunted by an upstart brave who wanted the chief’s job.

The young brave held a dove in his hands held behind his back. He challenged the chief to guess whether the dove was alive or dead.

Whichever way the chief answered, the brave could act to make him wrong. So the wise chief simply told the upstart brave: “The answer is in your hands.”

That point made, Bowman added, the individual jurors had to be sure of their answer, because in a matter as serious as the defendant’s life, they did not want to wake up in the wee small hours of the night some time soon, wondering if they had made the right choice.

The hour was late. Judge O’Connor sent the jurors home with orders to return Tuesday morning. They were then to choose a foreperson and begin deliberations.

Later, outside the courtroom, Bowman was asked: had the prosecution ever considered negotiating a lesser plea, a frequent option in serious cases.

“No,” he said.

Tom Nadeau

Hagins prosecution rests; defense silent

2010-05-28T09:49:00.000-07:00

The prosecution rested its case Thursday and the defense took the rare move of presenting no evidence in its favor in the strange case of People v. Marcus Charles Hagins, CRF-09-283.

Yuba County Superior Court Judge Kathleen R. O’Connor ordered the jury to return at 1 p.m. today to hear closing arguments by both sides.

The parties huddled for the rest of the rest of the day with O’Connor working out an agreement on what instructions, exactly, the jury will be given for its deliberations.

Deputy District Attorney Jennifer Dupré-Tokos finished her questioning of Detective Kevin Conde, a high tech expert with the Marysville Police Department and consultant with other law enforcement agencies who had reviewed the files saved on Hagins’ personal laptop.

The laptop had been confiscated in the investigation and examined for hours by Conde working out where in the laptop’s several operators had gone and what they had looked at.

Conde testified that it was clear to him that Hagins was far and away the main user of the laptop and that he had downloaded a mountain of bondage pornographer while cruising around the Internet.

The suspect’s pattern of usage indicated he had accessed porno sites on a regular and frequent basis and saved them under a site designated as “Paintball,” Conde testified.

Conde testified that in his analysis of the laptop’s usage he had download some 8,000 images – “graphics,” as Conde called them – both still photos and live action videos from .jpeg, just one of the half dozen or so graphics sites he seemed to have visited pretty much on a daily basis.

Conde said the 8,000 images were only those saved in the .jpeg format. He did not download an uncalculated number other images Hagins had allegedly saved in several other formats including .bmp. .gif and .tif, Conde said.

Tokos then played for the jury and spectators in the gallery one sample bondage porn video, over the repeated objection of defense attorney Michael Bowman.

The video was about 10 minutes long and depicted with sound an intruder wearing a black hood-mask entering the bedroom of a girl sleeping face down on her bed.

The intruder pounced on her, muttering threats and instructions as trussed her up and jammed a gag ball into her mouth.

This was more or less what the victim testified happened to her in the home intrusion/sex attack crime of which Hagins is accused. The only difference in the two tales is that in the porno video, the attacker led his bound-up victim to a nearby wall where he practiced some, er, gestures.

The jury of nine women and three men watched emotionlessly. Hagins sat blankly. Spectators viewed it silently. A few detectives sat in the gallery while the “dirty parts” played and left when they were.

Bowman cross-examined Conde closely, picking his way through the sometimes vague high tech terminology.

Conde testified he had been involved in other investigations involving Internet pornography.

Bowman got him to admit that the pornographic materials found on Hagins’ laptop and used for his prosecution came from “commercial porn sites” readily available to all exploring the Internet.

Asked to rank the materials found on Hagins’ laptop in terms of luridness of that which was available on the Internet, Conde describe it as, “rather tame.”

Bowman also questioned Conde on how anyone visiting one ‘Net site just to look to see what was there might unknowingly have multiple materials downloaded to his or her computer – something online merchants are known to do.

This could indicate that Hagins might not even be aware he was downloading scores of pornographic materials, Bowman suggested.

After some debate, Conde agreed that this was possible.

After some further questions from Tokos and re-cross by Bowman, Tokos told O’Connor her case was finished and she rested.

In a few blunt words, Bowman told O’Connor he would not be calling any witnesses and putting on no case for the defense, a rare action – or non-action – by the defense.

Bowman made no further comments, other than to work out how the parties would get together on the final instructions. Hagins – tall, thin and wearing a dark suit – elected to return to his cell, rather than sit through the complicated legal debate that would occupy the court for the afternoon.

Outside of the courthouse, some knowledgeable court kibbitzers expressed wonderment that Bowman would put on no case. Some averred that it might be a tactic designed to provide the defendant with a possible “IAC” – “Ineffective Advice of Counsel” – motion later, should the verdict go against him.

Such a motion would have to be filed with the court within 60 days and, if granted, could lead to a possible retrial. But IAC motions are seldom approved in California.

That is all speculation, of course, but it’s all court watchers are left to do when the attorneys make strange moves and do not explain what they did and why.

Tom Nadeau

Something new to show the jury

2010-05-28T01:04:00.000-07:00

Will this be the next courtroom exhibit?

Der Spiegel: He bears a passing resemblance to the Grim Reaper, the dead are his business and the media even calls him "Doctor Death." His Body Worlds exhibition of human bodies and animals -- preserved and displayed in often bizarre poses in a method he invented and calls plastination -- has been seen by over 30 million people around the world.

But this week, Gunther von Hagens, 65, will be attracting attention at home in Germany, where he is set on Friday to reopen a plastination facility and exhibition in the town of Guben in the eastern German state of Brandenburg. More controversially, von Hagens' Plastinarium will also be selling some of Dr. Death's work in what German tabloids have dubbed a "supermarket for bodyparts" and a "cabinet of horrors."

Like some macabre charcuterie, von Hagens' "Plastinat Shop" will feature transparent silicon "slices" of everything from humans to ducks to giraffes and crocodiles. The price tag on a slice of a human head is a lofty €1,500 ($1,838), and a cross-section down the length of a human body is even dearer -- going for 10 times that. He is also expected to open up an online shop for those with no time to travel to a remote eastern German town in search of body art. For the squeamish, full-sized color photos are available.

A case to follow, if only for its entertainment value

British police are still searching for the bodies of three women that self-identified ’crossbow cannibal’ is charged with killing.

But how can they expect to find the corpses when the alleged killer may have eaten them?

Hagins trial continues into 2nd week

2010-05-27T08:33:00.000-07:00

Yuba County Sheriff’s Sergeant Joseph Pomeroy, lead investigator, finished testifying Tuesday in the trial of Marcus Charles Hagins 19, accused sneaking into a Plumas Lake home and attacking a sleeping girl.

His testimony ended under pointed questioning by defense attorney Michael Bowman clearly aimed at suggesting to the jury of nine women and three men that investigators sought to trap the youthful Hagins into unintentionally making statements that could be interpreted as incriminating.

Pomeroy admitted under cross examination that one seemingly false denial by Hagins may actually have resulted from a confusion of terms. It seems the 20-year-old victim lived in two locations, dividing her time between her father’s and mother’s homes.

Hagins may have misunderstood which home Pomeroy and another investigator were referring to.

After admitted that detectives routinely make false statements themselves to place a suspect at ease and make them more likely to make incriminating statements, Bowman sought to bring out some of the techniques California lawmen often employ to build a prosecutable case against a suspect.

Two questioning devices Bowman mentioned included what Bowman referred to as the “Reid method of investigation” or Reid technique.

Reference sources state that: “The technique consists of a non-accusatory interview combining both investigative and behavior-provoking questions. If the investigative information indicates that the subject committed the crime in question, the Reid Nine Steps of Interrogation are utilized to persuade the subject to tell the truth about what they did.”

The use and abuse of “Reid” and other psychological persuasive devices are a continuing matter of discussion between prosecution and defense sectors of the criminal justice system.

Pomeroy acknowledged having been trained in investigative questioning procedures, but gave up little under Bowman’s inquisition.

Several other witnesses testified, including the father of the victim of home attack, but only briefly, filling in small points or substantiating other aspects of the prosecution’s collection of evidence.

However, one extensively questioned prosecution was Marysville Police Department computer expert Kevin Conde, an apparently extensively experienced investigator whose credentials elaborated at length under questioning by Deputy District Attorney Jennifer Dupré-Tokos.

Tokos went into such detail and at such length that Yuba County Superior Court Judge Kathleen O’Connor excused the jury for a break and to give her the chance to mildly admonish the prosecutor to speed it up.

With the jury absent, O’Connor said she had signaled the bailiff to turn down the heat in the room because some of the jurors appeared to be dozing under the boring technicalities of Conde’s descriptions.

One other witness that some raised eyebrows was Hagins’ schoolmate Daniel Alberti, who testified he tipped off the cops that he had Hagins’ laptop in his possession and then handed over to them.

What was not made clear under prosecution questioning was how Alberti happened to know the cops were looking for evidence against Hagins.

The jury was dismissed 4:30 p.m. with instructions to return today, Thursday, with the further possibility that court may be in session for only half of Friday, possibly not at all for that day, depending on how scheduling issues were resolved, O’Connor said.

Tom Nadeau