Commentary: The Right to a Fair Trial Collides with Transparency and Open Government in Marsh Trial

The recent defense motion by Deputy Public Defender Ron Johnson that seeks to exclude the public from 16-year-old defendant Daniel Marsh’s preliminary hearing puts us in a quandary.  Mr. Marsh stands accused in the double homicides of Oliver “Chip” Northup and Claudia Maupin of Davis.

On the one hand, the Vanguard has fought for open government and believes that transparency is a fundamental core value in a functioning democracy.  If the government wishes to take away the liberty of a citizen, then it has to do so in a very open and transparent manner where all can see, monitor and scrutinize.

On the other hand, Mr. Marsh is being accused of a brutal crime that could result in his being imprisoned for the rest of his life.  His attorney believes that the media coverage, which includes the prominence of the victims in the Davis community and details about his family’s troubles and mental health history, has made it difficult for him to receive a fair trial.

“The media coverage has offered speculations about details of the case, including possible defenses, evidence which may later be deemed inadmissible, Mr. Marsh’s history, and his motives,” Mr. Johnson writes.  “The media coverage has made a spectacle out of this case, and the potential jurors in Yolo County are unlikely to forget the assumptions and statements publicized by the news media before Mr. Marsh’s trial.”

He adds, “This case has received sensational treatment. The defense expects that there will be large amounts of evidence to be presented at the preliminary examination, and that the nature of that evidence is likely to excite further emotions within the community.”

Ron Johnson also makes a strong point that media often forgets, that “an affirmative defense is not presented at the preliminary hearing, and defense counsel does not plan to present a defense at the preliminary hearing in this case. The information received by the public present in an open courtroom will be one-sided and incomplete…”

The motion contains a number of media articles on the case, including those from Vanguard with its lengthy comments included.

The Enterprise reported on Tuesday that it intends to oppose the motion in court.  The motion will be heard on August 29 before Judge Timothy Fall.

Editor and Assistant Publisher Debbie Davis said on Monday, “We believe the public has a right to hear the evidence that is presented at this young man’s preliminary hearing.”

The Vanguard is currently weighing whether to join the Enterprise in its opposition to this motion.  While the Vanguard is concerned about the right to a fair trial here, we believe that the cat is most of the way out of the bag at this point, that the best defense is the truth, and that the public again has the right to monitor and scrutinize their government as the government attempts to deprive a citizen of his liberty.

Mr. Johnson argues, “It is unlikely that the potential jurors in Yolo County would be unaware of the existing news coverage in this case and remain unaware of the facts of this case after evidence is presented at the preliminary hearing. In short, it would be almost impossible to impanel an impartial jury in this case, and Mr. Marsh would be denied a fair trial.”

We agree with Mr. Johnson here, but differ in that we believe that is a better argument for a change of venue rather than closing the courtroom.

The Vanguard is also concerned that Mr. Marsh is a minor.  Normally, being a minor offers protections.  But as the Bee noted in its June 21 article, “The Bee is identifying the juvenile because he is being tried as an adult.”

The Vanguard is uncomfortable with the ad hoc decision made on these matters.  There are reasons why the identity of juveniles has been protected traditionally.  And while the justice system has been far in the direction of trying juveniles as adults, increasingly research suggests that juveniles’ brain development is far behind that of adults.

The result is that there has been a slow pushback, first against capital punishment for juveniles and now against life without parole.

Davis Enterprise Columnist Bob Dunning’s Wednesday column further illustrates the conundrum here.

He writes, “(Ron) Johnson is not to be faulted for doing his level best to protect his client’s right to a fair trial, but the public interest in this case demands that the courtroom be open.”

But against Mr. Johnson’s contention that the media itself is responsible for making “a spectacle out of this case,” Mr. Dunning responds, “But truth be told, the horrific nature of the crime itself is what has made a spectacle of this case … blaming the media for simply reporting the facts does not advance the cause of justice.”

Mr. Dunning argues, “All of what Johnson claims about the nature of this crime leads many of us to the inescapable conclusion that the public has an absolute right to know every detail of this case … if the courtroom is open for simple DUI and petty theft cases, it should most certainly be open for a double-murder trial with four special circumstances …”

Mr. Dunning then argues, “(Judge) Tim Fall is a supremely able Superior Court judge who knows how to control his courtroom … he’ll make certain that young Daniel Marsh receives a fair trial and that all of his rights as a defendant are protected … we can’t ask for more than that …”

The Vanguard is curious about the basis of Mr. Dunning’s claim, and he did not respond to our email from Wednesday that essentially asked on what basis he was making that decision.

We have a more mixed view of Judge Fall, based on numerous trials and hearings we have seen in his courtroom.

As we noted in our July 8 “Eye on the Courts” column, that Yolo County Judge Timothy Fall does not suffer fools lightly is a truth that is known throughout the Yolo County legal community and beyond.  Judge Fall runs the tightest and strictest courtroom in the county, bar none, and has no problem taking to task defense attorneys and prosecutors alike when they step out of line.

We think it is unlikely that Judge Fall will close down a courtroom.  Back in another high profile trial, involving the Galvan brothers beaten badly by West Sacramento Police, a Deputy DA’s attempt to close the courtroom to the Vanguard was shut down, as Judge Fall argued that freedom of the press was the hallmark of a free society.

However, Judge Fall, although well-versed on the law, like all of us has character flaws, and one of which is he loses patience very quickly and often makes ill-considered decisions because of it.  He was overturned on one case where he ruled that a juror committing misconduct by conducting an out-of-court broomstick experiment was not sufficient to overturn the verdict.

Judge Fall said, “Should the juror have done it? No. That’s an easy one. This is not the type of thing that if the juror had asked ahead of time, Judge, do you mind if I do this when I go home tonight that I would have said yes. I would have said, no, you cannot. You’re told not to do those types of things.”

The judge continued, “But the question is whether it is so unusual that it becomes prejudicial, and based on all of the evidence in the case, it cannot be seen to be unusual and prejudicial in that sense.”

When Mr. Raven attempted to argue with the ruling, Mr. Fall became both indignant and dismissive of the defense counsel’s claims.  Judge Fall decided that the verdict was not going to be overturned, he made his ruling, and that was that.

But the appellate court disagreed and overturned the verdict, arguing that the conduct of the juror clearly “crossed the line into misconduct.”

Similarly, as we have noted in many times, Judge Fall lost his patience trying to deal with the critical issue in the Ajay Dev case, and inexplicably allowed the victim to act as interpreter of the key portion of a pretext phone call, which was conducted in part in Nepalese.

That led to a conviction, a 378-year sentence, and now an appeal attempt.

As the defense would argue in this case, “The trial court abused its discretion by permitting [AV], a highly biased interpreter, to translate the portions of the pretext call spoke in Nepali.”

Citing the California Rules of Court, Rule 2.890(c), “An interpreter must be impartial and unbiased and must refrain from conduct that may give an appearance of bias.”

These are not small errors.  How could such a competent jurist like Judge Fall make them?  The appellate brief really tells the tale – there was a long and protracted argument between the defense and prosecution over the translation.

Judge Fall overruled defense objections, making the argument, “I’ve never had a completely accurate transcript ever on – anytime I’ve had a transcript used.  I will admonish the jury appropriately as I always do… but I’m going to let [the prosecution] go ahead and use the transcript.”

The problem here is fairly clear.  There was a legitimate disagreement over the translation.  The judge worked with both sides to reach an agreement, and when the agreement was not reached, Judge Fall seemed to lose patience and put forth a solution that was patently unfair – allowing the witness, the alleged victim, a biased party, to put forth the translation and giving the jury very few tools for alternative interpretations.

The evidence code seems very clear that Judge Fall erred, and that error might undo the entire verdict in this trial.

Bottom line is that, while most of the time Judge Fall has been a fair judge, there are times when his impatience gets the better of him and one concern here is that a case like this is going to try any judge’s patience.

We believe, based on the judge’s expressed opinions that he will keep the courtroom open to the public, that the better remedy would be to move this trial to Colusa or Glenn County, away from the uproar.

—David M. Greenwald reporting