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Eye on the Courts: Marsh Won’t Get Fair Trial in Yolo County

Yolo-Count-Court-Room-600The Vanguard operates on a principle of openness and transparency and therefore has opposed motions by Deputy Public Defender Ron Johnson to close the court proceedings to the public.  While we understand the public defender’s office’s trepidation about the sensational nature of both the case and media coverage tainting the jury, we believe that there is a bigger threat to a fair trial for their client.

We go back to Judge David Reed’s courtroom on Friday.  Judge Reed, the only judge on the Yolo County bench who was once a defense attorney, would ordinarily seem to be a fair judge for a defendant.

The public defender’s office and Deputy Public Defender Andrea Pelochino put forward a very strong argument that the interrogation and subsequent confession of 16-year-old Daniel Marsh was not “voluntarily, knowingly and intelligently” made.

As they laid it out, Mr. Marsh was taken into the police station under false pretenses.  He was told his mother would be called, but she was not.  He was greeted by Officer Ellsworth, who had formed a measure of trust with the youth, and then after being read his rights he was interrogated for five hours without parents or attorney present in a room full of officers and veteran FBI Special Agent Chris Campion.

The Vanguard is working a story featuring expert analysis of the interrogation, but in the meantime, let us argue that, while the confession and interrogation were videoed, at the very least the defense had a strong case to suppress this evidence.

During the break, someone asked if the judge would grant the motion, and immediately I knew that the answer was no.

Here we have a room full of press – one of the highest profile cases to hit Davis and Yolo County, a gruesome double murder, and a superior court judge was going to step up in Yolo County and suppress the key confession?  That was not going to happen.

In our interviews with the four judge candidates, I asked each of them if they thought they could stand up to political pressure.  But really, while it’s an important question to ask and to know, it’s an impossible question to answer.  No one really knows how they will respond when the light is on them.

The problem here is not political pressure, it is the implied pressure of the Yolo County DA’s office that can be exerted on any one of the independent judges.  Perhaps David Rosenberg, with his years as a political operative, could avoid some of this with his considerable political skills, but the typical judge is a sitting duck.

To illustrate this problem, we take you back to the summer of 2011.  Judge Paul Richardson was a few months away from presiding over the biggest case of that time, a death penalty case involving the shooting of Sheriff’s Deputy Tony Diaz by Marco Topete.

In 2011, Judge Richardson ruled against the DA’s office on some motion, and the DA’s office proceeded to “paper” judge Richardson, taking case after case for removing the judge under Code of Civil Procedure section 170.6.

Under 170.6, “A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee.”

In short, at least ten days before the date of the next hearing, an attorney can effectively disqualify a judge.  They can only do this once and they can do it summarily, by simply declaring prejudice.

While the DA’s use of 170.6 against Judge Richardson clearly served as a warning – and it may have worked, as Judge Richardson had several key motions before him in terms of jury conduct and other key questions, on all of those the judge ruled in favor of the prosecution.

However, one of his predecessors was not so fortunate.

The story of Judge William Lebov is an interesting story.  He was a former prosecutor and was seen to rule often with the defendants.  So the DA’s office, under David Henderson, began to “paper” him, or use point-six motions to get cases out of his courtroom.  Eventually, he had no cases left in front of him and was forced to retire.

The threat that the DA’s office could retaliate against a judge for making an unpopular ruling in a key case is not some fictional conspiratorial account.  It happened with Judge Lebov and it effectively removed him from the bench in Yolo County.

To be both fair and clear in the matter at hand, we have no evidence that Judge Reed was swayed by any implied or actual threat, but like everyone else, he knows or should know of the possible consequences of ruling against the DA’s office in key cases.

But that is the point.  Any moment when we find ourselves questioning whether the judge is making a ruling based on the law or on office politics, we have to question whether the defendant can get a fair trial from him.

Research on confessions has shown that the impact of a confession is so critical that the jury has often ignored all other evidence that points toward innocence, out of a mistaken belief in the veracity of confessions.

Because we cannot be sure that Judge Reed ruled on this case because he believed that the prosecution met the legal standard for proving, under a standard of totality of the circumstances, to a preponderance of the evidence that the confession was made voluntarily, knowingly, and intelligently, we have to question whether Mr. Marsh can get a fair trial in this county.

Indeed, Judge Reed acknowledged that he knew and had worked with one of the victims, Chip Northup, who had practiced law himself until his untimely death allegedly at the hands of young Mr. Marsh.

Mr. Marsh may well have committed the crime he is charged with.  However, at least to date, the only evidence that we have seen presented came out of his mouth and was the result of five hours of interrogation by a number of veteran law enforcement officials.  We have to at least question those circumstances and it may be that Judge Reed, in this county and with the way this DA’s office operates, cannot render such decisions in a fair manner.

In our view, at this point, the case is too notorious and volatile in Yolo County and should be moved to another county where a judge can weigh the evidence without fear that the DA’s office would use 170.6 to remove cases from his department in retaliation.

—David M. Greenwald reporting

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About David Greenwald

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

36 comments

  1. Might be nice to fix your headline…

  2. “at least to date, the only evidence that we have seen presented came out of his mouth and was the result of five hours of interrogation by a number of veteran law enforcement officials.”

    Disclaimer : My following comment has absolutely nothing to do with the innocence or guilt of Mr. Marsh, but
    relates to police and prosecutorial process only.

    I would like to point out that these are veteran law enforcement officials who have already themselves lied.
    Mr. Marsh was brought in for questioning under false pretenses. He was then falsely told that his mother would be notified.

    I strongly object to the ability of police to lie to suspects in order to trick them into providing information.
    In a recent conversation with a local law enforcement officer, I was assured that this is a rare event and only used under extreme circumstances in which there is danger in not obtaining information in a timely manner. The current example is dramatic proof that this is certainly not the case. In custody, Mr. Marsh was of no potential harm to anyone else. And yet he was lied to not by one individual, but by all of them.

    If the police and any involved interrogators are allowed to lie to extract information, how can a jury be assured that they will not continue lying in order to make their case ? Justice should depend upon finding and presenting the truth. How can this process begin with a series of lies ?

    • David Greenwald

      I agree completely. This is not about guilt/ innocence, this is about a 16 year old getting a fair trial that will determine where he spends most of his life. The notion that law enforcement can lie and deceive is really troubling. I already talked to an expert, more coming on all of this.

      • “This is not about guilt/ innocence, this is about a 16 year old getting a fair trial that will determine where he spends most of his life. ”

        I thought it was about assessing guilt for homicide. I don’t buy the nonsense about DAs intimidating judges affecting this ruling. Confessions obtained under these conditions have been held admissible. The defendant may well be due a change of venue, but not based on this ruling and your speculation about local judges’ testicular fortitude.

        • David Greenwald

          “Confessions obtained under these conditions have been held admissible. ”

          And also be found to be problematic.

          • It’s only a problem if he falsely confessed or if the police denied him his legal rights. I don’t know enough other evidence to have an informed opinion about the former and I have not heard anything to suggest the latter.

            I also doubt this judge decided the way he did due to some unseen pressure from the DA’s office. Keep in mind that, if the judge was mistaken in his ruling on the confession evidence, his ruling will be reviewed by an appellate court (if there is a conviction without a plea bargain).

            I can understand why a judge might not want to be on the bad side of the District Attorney. At the same time, he does not want to be on the wrong side of the Court of Appeals, either. So it seems to me unlikely that a judge would err purposefully (to make the DA happy), if he knows such mistakes will overturn his cases and result in his having a reputation as a stupid judge (in matters of what is and is not admissible).

    • Police dishonesty is not a a rare event. It happened to me in 2007; it still disturbs me. The police questioned me, and they lied to me in an attempt to trick me. Unfortunately for them, I had physical evidence back at my house that proved they were lying to me. I bet this dishonesty happens more frequently than we all want to realize. They also threatened to send CPS to my home to bother my teenagers, if I did not cooperate with them.

  3. I think you are saying that Marsh won’t get a fair trial in Yolo County because the Judge will unlikely rule against the prosecution for fear that the DA’s Office will then take action to force the Judge from his job. Is that what you are saying? Jeff Reisig needs to answer to this. Does he really do this to Judges in such a methodical way? Did his office really do this to Judge Richardson in retaliation for a court ruling? This is a fairly serious allegation, in my mind.

    It seems that the culture of Yolo County and Davis is full of bullies that use their office or their political power to threaten others, whether it be a Judge or a coach, or what have you.

    • David Greenwald

      “I think you are saying that Marsh won’t get a fair trial in Yolo County because the Judge will unlikely rule against the prosecution for fear that the DA’s Office will then take action to force the Judge from his job. Is that what you are saying?”

      That’s what I’m saying. I’m going to try to get a full story together on what happened to Judge Lebov.

      • Bring it on, David. If it is true, then what keeps the DAs office in that County retaliating in the same manner in support of their cohorts in Yolo County?

        I would say that Dave Reed is one of our best judges. Fair-minded, thoughtful and deliberate. I would hate to see this happen to him. I find it an unlikely senario that he would be the legitimately become the target of papering by the DAs Office.

        • David Greenwald

          I’ve seen evidence that they used the tactic twice. I suddenly realized that if Judge Reed had ruled against the DA’s office there, they may well utilize 170.6 against him.

  4. “He was told his mother would be called, she was not. He was greeted by Officer Ellsworth who had formed a measure with trust with the youth, and then after being read his rights was interrogated for five hours without parents or attorney present in a room full of officers and veteran FBI Special Agent Chris Campion.”

    If this is how they treat a 16 year old, with obvious psychological impairments, I shudder to think how they would have treated an adult. And why does it still surprise me that they were allowed to lie to him? (“He was told his mother would be called…”) As soon as he said he wanted to go home, they should have stopped their questioning and at the very least. got an attorney for him.

    Shame on them.

    • He is a 16 year old accused of creeping into a home in the middle of the night and stabbing to death the two people sleeping there for no apparent reason. I tell him anything to find out if this was the person who did that, if that’s what it would take. He was told that he didn’t have to come with the officer, that he didn’t have to talk, that he could ask for a lawyer. These were not lies. Are people really ready to throw out his confession and description of what happened because the Officer told him that he would call his mom and didn’t?

      • “Are people really ready to throw out his confession and description of what happened because the Officer told him that he would call his mom and didn’t?”

        I think that’s an oversimplification here. The public defender’s office listed a number of concerns, and the totality of the circumstances here suggest to me that you have a 16 year old, in a room full of veteran police officers for five hours without parents and attorneys. If they can’t prove their case without the confession, then I think we need to question the confession.

      • Ryan, do you remember when you were 16 years old? Would you be able to stand up to a room full of law enforcement, if you were 16 and if you had psychological problems? They had him in custody, they were protecting the community at that point in time. They should have got a lawyer for him. They did lie when thy said they were calling his mom.

  5. donna lemngello

    It is a serious allegation and it looks as if it is quite true, especially to be used to the point in Lebov’s case where he had no cases and had to leave. It could be a useful tool to remove an unfair judge, but politics make it such that anything can be abused.
    As for lying as a means to en end, it’s WRONG, it’s always WRONG and officers who engage in it should be disciplined.

    • “As for lying as a means to en end, it’s WRONG, it’s always WRONG and officers who engage in it should be disciplined.”
      It is standard operating procedure and has long been held “legal” by courts. I am unaware of any jurisdictions where it is not regularly used. I have also be questioned by police using this tactic, once as a minor, but was never compelled to make a false confession by their antics. If the defendant is psychologically impaired, that will almost certainly come out in the course of the legal process.

    • donna lemngello wrote:

      > As for lying as a means to en end, it’s WRONG, it’s always
      > WRONG and officers who engage in it should be disciplined.

      With a few exceptions (e.g. on the stand under oath) you can lie all you want in America without breaking any laws or getting punished/diciplined for lying.

      I don’t know if trying to discipline everyone who tells a lie is a good idea since the jails will be overflowing with guys who have told cops they had “just a glass of wine with dinner” or told their wives “you don’t look fat in that dress” (and the women’s prisons will be overflowing with 35 year olds that weigh 140+ with match.com profiles that say they are 29 and weigh 130)…

      I don’t want to bum everyone out but more often than not the people you meet (and politicians you vote for) will be lying.

      • “I don’t want to bum everyone out but more often than not the people you meet (and politicians you vote for) will be lying.”

        Yes, but they do not have the immediate ability to hold you in a room with a group of experienced officers asking you questions for hours after you have stated that you want to leave to “think it over”. Thus my questioning about the minimal trigger to assert Miranda rights. I would think that the request to leave would be sufficient. Apparently if you don’t know the”magic phrase” it doesn’t matter and you can be held until you provide answers your captors deem adequate after having told you that your mother would be contacted.

  6. Davis Progressive

    the lebov papering is fairly common knowledge. judge fall was also papered for a time which made him more compliant, they also tried to electorally take him out along with judge maguire. this is pretty standard operating position.

    judge reed – who is the only sitting judge who was a defense attorney – is one of the better judges, but i think there is no way he was going to risk angering the da’s offices on a close call.

    the key question: was the interrogation kosher? i question most interrogations, i don’t think judge’s have the ability to evaluate them properly. the number of confessions that have been found to be faulty goes up measurably for juveniles. yeah, he’s accused of a horrific crime but he still deserves a fair trial. if the da’s office can’t get a conviction without the confession being admissible, perhaps they need to reevaluate their case.

  7. From my perspective, Mr. Marsh wouldn’t get a fair trial in any county for the following reasons: (1) he is being tried as an adult for crimes that he is accused of committing at 15; and, (2) his somewhat diminutive stature and downcast, overwhelmed appearance clearly contrasts with to the robust stature and the mature, dominating character of the deputies escorting (handling) him throughout the pre-trial process. This stark visual clearly emphasizes his juvenile status.

    • Steve, those two factors would seem to work in his favour, especially if there are parents on the jury, at trial. As a father, I would hope for a resolution protecting everyone’s rights and physical well-being. I would have no issue with him being tried as a juvenile. I also frankly think that he might have been more forthcoming and saved us all much grief, had the police brought his mother to the room and given him that emotional support, assuming that was what he sought. That said, I see nothing in David’s speculation that justifies a change of venue.

      • Biddlin, Did you read Bob Dunning’s column a couple of weeks ago in which he said Marsh should never see the light of day again, or ever walk freely amongst us?

        Nothing like signaling friends on the bench, or contaminating jury selection.

        • Dunning should keep his mouth shut unless he is attempting humor. He is a menace.

          • And a menace who apparently has no regard whatsoever for the concept of “innocent until proven guilty”,

        • Attitudes like those that Mr. Dunning espoused are one of the reasons we had a state prison system at over 200% of capacity and costing the citizens of the state millions in litigation costs and billions in prison system costs.

  8. Papering judges happens in other counties too.
    Judge Barbara Roberts in Butte County was papered by DA Mike Ramsey – she couldn’t hear any criminal cases and had to move to the civil division where she remained for a number of years.
    Now she’s back hearing criminal cases and it appears she learned her lesson.

    We don’t have a justice system, we have a legal system that is often unjust.

  9. Blessedly, I am spared Dunning’s pronouncements, unless linked from The Vanguard or sacbee.com, but I am sadly aware of all the contaminants in the media.

  10. I would hope that they have other strong physical evidence if they want to prove this case adequately. If it’s weak without the confession that is really an issue of major concern. Of course it is the job of the prosecution to try and keep the confession admissible, but it is also their job to present more convincing evidence than just that for a justifiable conviction.

  11. anonymous pundit

    Reed got it wrong… not out of fear of the DA, but because he wants the teen to be convicted and convicted as an adult of sound mind. He is pursuing a result rather than an impartial process. This is corrupt, and it is not an exception to his behavior on the banch.

    We should hear how all of the judgicial candidates would have ruled.

  12. Wow… this article and the comments that support it are the most ridiculous collection of speculation at best. More like flat out bias and agendas and a lot of mental masturbation. Amazing to see criticism of Bob Dunning having a take on the case. How is what you do here any different? How is it any less odious to speak for motivations and deviousness of the judge and the prosecutor than of the defense and the defendent?

    A dozen of you claim to know what is in Judge Reed’s mind and decision-making process, not to mention suggest that he makes his decisions based entirely on politics and power. While all of this may be a big melodrama for Vanguardians, it’s just another day at work for the people involved. A day at work when professionals do their jobs in a professional and ethical and legal manner. Back when Reed was on the defense side, he walked on water at the Vanguard, as all defense attorneys do. Now, he’s a pawn of the DA. Please.

    Anyone looking for objective reporting and discussion seriously needs to look elsewhere.

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