I don’t have a schedule for blogging; it’s just as the mood hits me to write. So, just keep checking, and some new information is likely to pop up. I like to write, but the mood is not always there.
Lisa P’s case now was in the trial court presided by Judge Kathy O’Leary and prosecuted by Deputy District Attorney Robert “Bob” Molko.
Kathy was a former public defender who was appointed to be a judge by the Governor. Her primary job as a public defender was to represent the PD’s clients in the Master Calendar Court, Department 5, presided over by various judges for one or two years. The Master Calendar Court handled all felony arraignments, where the defendants are informed of the charges against them, enter a plea of either not guilty or guilty, and it was also the place to file motions such as Penal Code Section 995, where the defense challenges the sufficiency of the evidence presented at the preliminary hearing, saying “not enough evidence to show a reasonable probability the evidence presented is enough to make an accused go to trial.” Another motion that may be made in conjunction with the preliminary hearing is that evidence was improperly admitted or was in violation of the US Constitution, such as an illegal search or seizure tainted the evidence as a 4th Amendment violation. Also, deals were struck at the first appearance arraignment date and Kathy was really good at getting great dispositions in Department 5. She is, to this day, really smart, knowledgeable and well-respected as a judge. As a matter of fact, she, some years past, was elevated to be a Justice of the Fourth District Court of Appeals, where she, as of this writing, still presides.
The prosecutor, Bob Molko, a tall dark-haired wiry-built, pretty thorough DA who put in plenty of hard work on his cases, plus he was extremely intelligent, and also a pretty fair guy whom one can talk to.
The first thing in the case was to try to talk the DA out of seeking the Death Penalty in this case where a 5 month old baby was suffocated, presumably by a pillow, in his crib, and also my client was accused of stabbing the child’s mother, who was purportedly the mistress of my client’s husband. After a lot of conversation back and forth, the DA’s Office, through their Death Sentence Committee agreed not to seek Death in the case, but Life Without Parole was still on the table. There was an offer of straight life, I believe, but was rejected by the Defense. So, after the in-Chambers negotiation, a plea of not guilty was entered and the case was assigned for trial before Judge Kathy O’Leary for all purposes.
Well, I had two major pre-trial issues. One, the DNA still had not been blessed by the Courts as an accepted scientific test of evidence comparison like fingerprints, and it was still controversial as a guilt by probabilities speculation, as opposed to a scientifically sound piece of evidence. The defense attack on DNA was decided by the trial judge by a pretrial motion The second attack was against the statement made by the client to her husband on the basis he was acting as a police agent when he was placed with the accused in a separate room at the Sheriff’s Office where the conversation was recorded.
There are a lot of things that had to be done in the defense case. I needed a Chinese interpreter to help me converse with the client. The court would provide a court interpreter, but I wanted my own. I needed a pathologist regarding the bite mark, for re-checking the DNA sample as well as aging. I wanted a jury expert to help in theory of defense as well as help in designing a jury questionnaire. I wanted a bite mark expert and a pathologist to check the coroner’s findings. Because Kathy had a reputation of some bitterness towards old-time defense attorneys who she allegedly referred to as “the good old boys” I engaged Richard Schwartzberg. a prominent appeal scholar to handle some of the legal issues that may crop up. It didn’t hurt to know Richard, formerly in charge of the Orange County Public defender’s Writ, Motions and Appeals Department, and him being a good friend of the judge wouldn’t hurt. Now the DNA had to be attacked as speculative evidence, so I had the pleasure of hiring Paul Stark, a former Public defender senior trial lawyer, in my firm previously.
Paul is a big guy. Over 6 feet tall, husky and very smart. He was a grade 5 Public Defender, and that was about as high as one could go in that office. He asked to come to work for me, and I grabbed at the chance of enhancing my firm with his great talent. Interesting to note: Paul was a very observant Jew who would not work on Saturdays, the day of Shabbat or the Holy Day, which was okay, as he worked on Sundays. Paul lasted about two years before he stretched his wings and joined up with his buddy from the public defender’s office, Richard Schwartzberg, who was mentioned previously. Well, Paul practiced law with Richard for a period of time, but eventually moved to Israel, moved to Jerusalem, opened a law practice and eventually, like so many of my associates, today is a judge in Israel. Paul knew the DNA controversy very well, so I brought him back to Orange County so he and Lynn Patterson could present the defense position regarding DNA evidence. They did, but Kathy O’Leary only took three weeks to read all of the brief and all the scientific articles and then ruled the evidence was reliable, so the evidence of DNA and the bite mark could be presented to the jury.
Next, the attack on the statement from Lisa to her husband. I took that portion together with Richard and did one heck of a good job. The police interrogation was a brutal series of threat and accusations, including threats to prosecute her boys, lasting for hours and denying her continuous requests for a lawyer and desire to leave. Lost that ruling and the admission of biting the victim was going to come in. Things weren’t stacking up so well for our side as far as pretrial evidentiary motions were concerned.
So a date was set to proceed with the trial.
This was one of the few cases where the accused, through her husband, could afford to pay not only for my services, but also all of the needs including investigatory costs. No doubt the system favors the wealthy. I even brought in James “Jim” Rasicott from St. Paul, Minnesota, after interviewing other jury consultants, to help me select a jury. Jim has a PhD in social sciences and was a recognized jury expert. I had never used a Jury expert before, and was somewhat leery of the whole deal, believing I could pick a jury without such help, and I still think so, and will explain more as we move on in this case. Actually it wasn’t Jim’s credentials that swayed me, but the fact Jim was a pocket pool shark as a hobby, and on his travels, would go to a pool hall in some town and take on the local sharks for cash. That impressed me, as it would appear he would have to make quick judgments about people on very little evidence. Actually a very close friend and attorney, who practiced in San Bernardino and Riverside counties, and was just a brilliant lawyer, certified as an expert, and the only one in California both in criminal law and domestic violations by the California Supreme Court, used a bartender to help him evaluate jurors as he believed bartenders have to make quick decisions regarding their customers. Taxi drivers probably the same.
With Jim, I was able to try out my defense approach to a mock jury, first time for that. I played both prosecutor and defense and ended up with a split, but hung, jury, and revised the defense approach as a result. It was worth the expense.
So now to the trial with jury selection and opening statements, and the final result, which will be my next blog.
Marshall
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