Yolo County Judge Tim Fall was removed from presiding over the Daniel Marsh case. Mr. Marsh, 16, stands accused in the stabbing death of two prominent Davis residents in April. He has been held to answer on all charges including special circumstances.
Deputy Public Defender Ron Johnson filed a declaration on Wednesday which stated that his client could not have “a fair and impartial hearing” by Judge Fall. There were no other details and the public defender’s office declined further comment.
Judge Fall has consistently ruled against the defense. In late August, he quickly denied a motion filed by Public Defender Ron Johnson that sought to close to the public the preliminary hearing.
“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 wrote in his motion. “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.”
Judge Fall would quickly deny the motion, arguing that he assumed the representation by the defense was accurate and that this case would contain graphic depictions that the community is not normally presented.
However, he argued that the standard requires a substantial probability that this will lead to a prejudiced jury pool, and that only a mere possibility has been presented.
In his motion, Mr. Johnson argued, “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.”
However, Judge Fall in contrast noted that in cases where there has been extensive media coverage, in his experience most members of the jury who do not live within the community are not paying much attention. So people not living in Davis are not paying attention to what is going on in Davis.
He also upheld the special circumstance torture enhancement.
“The torture-murder special circumstance requires proof that a defendant intentionally performed acts that were calculated to cause extreme physical pain to the victim,” wrote Mr. Johnson in his motion to dismiss, noting that Mr. Marsh’s alleged confession, that he felt exhilaration during the killings, does not necessarily amount to intent to torture.
The truth is Judge Fall can be a difficult judge. He 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.
But, while counsel fear making a misstep in his presence, at the same time most respect his intellect and command on the law. Long ago, he gained our respect when he tossed aside a Deputy DA’s attempt to close the courtroom to the Vanguard, arguing that freedom of the press was the hallmark of a free society.
However, we have noted on several occasions on of the flaws of Judge Fall is that he can lack patience, and he will sometimes improperly cut off argument and fail to consider all aspects.
In one case, one of the jurors acknowledged to defense attorney Jeff Raven that he had conducted an experiment using a broomstick. The juror had “told jury members that he had conducted an experiment at home where he sat in his car as a passenger and had a broomstick, pretending he was shooting at a house. The juror said that after his experiment, he felt that one of the shootings was intentional and deliberate.”
Judge Timothy Fall became aware of the problem and had a hearing acknowledging that the court received the affidavits from the two jurors, “which were competent evidence.”
Judge Fall found that, in performing the broomstick experiment, Juror No. 2 committed misconduct.
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.”
The appellate brief from the Ajay Dev shows a similar problem, Judge Fall simply ran out of patience for resolving the translation issue, and he made a huge error – he allowed the victim to translate the contested portion of the pretext call.
When the defense objected to use of the transcription containing the alleged victim’s (AV’s) corrections, Judge Fall would overrule them with, “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.”
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.”
From this standpoint, the defense in Marsh probably is right to err on the side of caution believing that Judge Fall having dismissed their concerns about a fair trial on several occasions, perhaps cannot preside over a fair trial.
It is a shame because when he is on his game, Judge Fall can be fair, he can stand up to district attorneys, and he has vast knowledge of the law. But the defense cannot be sure that they get that Judge Fall and with Daniel Marsh facing life, this is no time to take chances.
—David M. Greenwald reporting