Last week a hearing on whether Judge Richardson should be disqualified from presiding over the Darnell Dorsey murder trial was delayed for two weeks. In a motion filed on February 18, Deputy Public Defender Martha Sequeira entered doubt “that Judge Paul K. Richardson would be able to be impartial,” arguing that Judge Richardson “has a bias or prejudice toward Deputy Public Defender Martha Sequeira and the Yolo County Public Defender’s Office that are grounds for disqualification.”
This belief, they argue, is based on Judge Richardson’s handling of an unrelated case involving defendant Eric Lovett. Mr. Lovett was the fourth defendant in the trial that took place last summer, where Michael Reyes was found guilty of attempted murder for shooting what the DA claimed to be a rival gang member and sentenced to 68 years to life in prison. Co-defendants Liberty Landowski and Lisa Humble were also found guilty, but given much lesser sentences.
However, Mr. Lovett, accused of, among other things, being an accessory along with weapons and gang crimes, had his charges dismissed prior to the trial and then refiled. It now becomes clear why this occurred. If convicted, Mr. Lovett faces life in prison based on the charges he is currently facing.
Mr. Lovett’s trial will begin today in front of Judge Dan Maguire.
Defendant Lovett Allegedly Makes Threatening Gestures to Testifying Complaining Witness
On the second day of the preliminary hearing, February 19, 2015, the complaining witness, Ernie Sotelo, testified for the prosecution. The next day of the preliminary hearing, March 3, 2014, Officer Anthony Herrera testified that on February 19, 2015, he had witnessed Mr. Lovett make gestures toward Ernie Sotelo as Mr. Sotelo testified, and the officer interpreted the gestures as threatening.
Officer Herrera claimed he saw Mr. Lovett “do it over and over again.” He also testified that Officer Galvan told him that he, Officer Galvan, saw Mr. Lovett “do it several times,” “the same thing, the same motion with the finger.”
Officer Galvan reportedly saw Mr. Lovett make this motion “five or six more times, doing it very slow.”
Officer Herrera said, “[Officer Galvan] said at first before Ernie Sotelo came in to testify that [Lovett] was jovial, laughing and joking, but as soon as Ernie Sotelo came up here to testify, he said that that’s when he said he paid particular attention, said that he was – looked to be very interested in looking at Sotelo, and would like grit his jaw to where you could like see the muscles clenching in his face. He said he wasn’t joking and jovial up to that point, after that point, excuse me, when he was testifying.”
At a trial readiness conference, Ms. Sequeira writes, when specifically asked whether the court saw Mr. Lovett threaten anyone, Judge Paul Richardson stated, “I did not witness anything that would come up.”
Following the subpoena for the judge, the prosecution dismissed the case against Mr. Lovett and then re-filed a new complaint on July 13, 2015, in which the main charges were re-instated and a charge of dissuading a witness was including based on the alleged conduct on February 19 in open court. That case was assigned to go before Judge Rosenberg rather than Judge Richardson.
In December, Officer Galvan testified that, while Mr. Lovett was “in a good mood, looked like he was happy,” his demeanor changed when Mr. Sotelo entered the courtroom to testify. He said he had a “straight face on him” and started “staring in the direction of Mr. Sotelo.”
Officer Galvan claimed he observed the “right side of [Mr. Lovett’s] face started tensing up in the temple area and the jaw area” after Mr. Sotelo began to testify. He witnessed Mr. Lovett’s “right hand go up to the side of his neck” and “observed his fingers pointing toward his neck area, and at that time I noticed his hand moving back and forth in a slow manner approximately five to six times.”
Officer Galvan testified that he retrieved a court surveillance video, viewed it, and even though the camera captured Mr. Lovett at different angle, Officer Galvan testified that the video substantiated his in-person observations.
Ms. Sequeira, in her motion, said that the video was deemed “confusing at best” by the other defense attorneys. Rod Beede, a counsel for a co-defendant, said that it “would be hotly contested what, if anything, Mr. Lovett did when the witnesses (sic) was on the stand. My entire staff and I looked at the tape two or three times and it was confusing at best.”
Judge Rosenberg was similarly equivocal on the content of the video.
“I saw Mr. Lovett make certain movements with his hand, which frankly surprised the Court, took me aback,” the judge stated,
He held Mr. Lovett to answer on the charges on December 14, 2015, but reasoned that a jury “could readily determine that Mr. Lovett was just fidgeting, but I also believe that a jury could determine that he was making motions like a slashing of a neck to intimidate a witness that was on the stand.”
He would rule that a jury was the proper entity to determine this.
May 2015 Trial Readiness Conference Discussion
The defense would bring up questions as to whether the case should be severed. Deputy DA Amber Zambor argued about the additional charges: “They are not meant to inflame the jury or to add a weak case to a stronger case. I believe that they go directly towards Mr. Lovett’s motive of trying to help Mr. Reyes get away with the crime after the fact.”
It was Deputy Public Defender Dean Johansson, at the time representing Mr. Lovett, who told the court, “In reviewing the video of this added charge, it’s apparent to me that the Court may be a witness. Did the Court witness any actions alleged, is my question?”
Judge Richardson responded, “The first I heard about it was, I believe, when the parties brought it up.”
Mr. Johansson responded, “So you did not witness any of these actions?”
He responded, “I did not witness anything would come up.”
After further discussion, Mr. Johansson stated, “I just want to place on the record that I do intend to call the Court as a witness. And I don’t say that lightly. I’ve reviewed the video over and over again, and the vantage point that the Court has is the same vantage point, essentially, that the witness has in viewing my client.”
Both Dean Johansson and Judge Richardson acknowledged “there may be hurdles to get over in order to “call the Judge as a witness,” with Judge Richardson indicating, “That would be a hurdle.”
Then Ms. Zambor added, trying to debunk the notion that Mr. Lovett’s actions would be used against the other defendants, “I, myself, saw Mr. Reyes turning away, not facing Mr. Lovett. We would not be making those insinuations, our gang expert would not be trying to do that to Mr. Reyes. I don’t believe there was any communication between the two.”
To which Mr. Johansson responded, “With that statement I believe Ms. Zambor is also a witness.”
Mr. Beede would add, “On the motion of – on the idea of either recusing the Court or recusing Ms. Zambor, I believe this is based, apparently, upon (something) “that either of you didn’t see rather than something you did see. And so the question is how much intention does the prosecutor or the Court have in looking at a defendant in a jury box when the witness is on the stand and counsel are asking questions. The focus is directed, usually, towards the witness or towards the attorney.”
Subpoena and Motion to Quash
The defense believes that, based on the positioning of the defendant at the time of the alleged threat, Judge Richardson is a percipient witness. However, when Judge Richardson was subpoenaed, he retained private counsel to quash the subpoena.
He objected to the subpoena “because he is a judge and therefore immune from having to testify, and because he is a public official and therefore subject to special consideration before he can be subpoenaed.”
Judge Richardson, in the original motion filed on July 23, 2015, argues that the subpoena “should be quashed on several grounds, including: (1) under Penal Code section 1321 and Evidence Code section 703.5, Judge Richardson is prohibited from testifying as to any statement, conduct, decision, or ruling, occurring at or in conjunction with a prior proceeding over which he presided; (2) Judge Richardson was not a percipient witness to any statement or conduct material to the instant criminal proceedings; and (3) the availability of other percipient witness(es) to testify regarding the matters alleged in the instant criminal proceedings.”
In a February 16, 2016, filing, the attorneys for Judge Richardson argue, “There is no legitimate basis for the Public Defender to repeatedly seek the testimony of Judge Richardson. Nevertheless, this is the second subpoena issued for his appearance in this matter, made after a prior successful motion to quash, delivered days before the judge is scheduled to appear, and requiring an additional motion to quash.”
They continue, “It is apparent that the Public Defender does not intend to cease efforts to compel Judge Richardson to appear in spite of the fact that there is no justification for it, no indication that any testimony he would offer is relevant or would add to or contradict the testimony of other witnesses. The undue burden and expense of these repeated harassing, fruitless efforts must be halted. It is therefore requested that this court issue an order prohibiting any further efforts by the Public Defender to compel the testimony of Judge Richardson in any hearing on this matter.”
The attorneys then request sanctions in the order of $3013.50, arguing that the court is permitted “to order the losing party to pay the prevailing party’s monetary expenses, including reasonable attorney’s fees, incurred in the motion to quash, if it finds that the motion was “made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”
The defense counters, “Without Evidence Code section 703.5, a judge could conceivably become a witness in every case over which the judge presides simply by virtue of the fact that testimony and other evidence is presented to the court as part of the legal procedures accepted by this nation. To allow a judge to then be subpoenaed to testify about every case where he may have knowledge of others’ testimony or actions would literally cause the justice system as we know it to grind to a halt.”
At the same time, they argue, “the code also recognizes that a courtroom is not a legal sanctuary whereby judges are immune from testifying about anything and everything that happens within its walls.”
They argue here that the exception applies to the case at hand, noting that if the defendant had instead stabbed a bailiff, and the only witness was the judge, the judge would have testify. “Judges who are witnesses to crimes committed in a courthouse are witnesses subject to the obligation to testify in a subsequent proceeding,” the defense argues.
Nor is Mr. Lovett seeking testimony from Judge Paul Richardson in his “official capacity,” but rather “testimony is sought in his capacity as a percipient witness to an alleged crime.” The defense will argue that each case cited by the judge “is inapplicable to the case at hand,” because none of them involve officials as percipient witnesses.
They write that “he is a percipient witness who has personal knowledge of a situation that unfolded in his presence and now forms the basis of a felony charge against Mr. Lovett.”
In a declaration signed July 23, 2015, Paul Richardson stated that “I did not witness the alleged conduct when it occurred. I was only informed later by third parties.”
The defense argues, “This is insufficient to allow witness Paul Richardson to avoid having to testify at Mr. Lovett’s trial. In fact, it is evidence that supports Mr. Lovett’s contention that a threat did not happen.”
They continue, “Specifically, Mr. Lovett expects that witness Paul Richardson will testify that he never observed Mr. Lovett gesture to Ernie Sotelo in a threatening way, that he never noticed Mr. Lovett’s demeanor change from happy and jovial to tense and clenched around the time of Ernie Sotelo’s testimony, that at no time that afternoon did Ernie Sotelo look like ‘someone who had just perceived a threat on’ his life, that at no time that afternoon did Ernie Sotelo act like someone who had just perceived a threat on his life, and that at no time that afternoon did Ernie Sotelo speak like someone who had just perceived a threat on his life.”
They argue, “This is material and relevant evidence.”
The defense adds, “Attorneys’ fees arising from the litigation of a criminal subpoena are not recoverable.” They continue, “More disturbing than the fact that petitioner has requested sanctions without legal authority,” is that in the declaration are billings for services she and her firm could not have worked on. “Specifically, petitioner’s attorney requests $717.50 reimbursement for the time she spent responding to Opposition papers that had not been filed as of the date of her declaration. Further, she requests $522.50 for reimbursement of fees incurred in an attempt to obtain a tentative ruling that did not happen and for an appearance in court for a hearing that had not occurred.”
The attorneys for Judge Richardson withdrew their request for sanctions but take umbrage at the insinuation of impropriety.
The Basis For Recusal in the Dorsey Case
While the Lovett proceedings present a fascinating backdrop, there is no reason to believe that a judge would harbor animus against the defense attorney attempting to do his or her job defending a client. However, it was a hearing on December 17, 2015, on another matter, the Darnell Dorsey case, that convinced the Public Defender’s office and Martha Sequeira that Judge Richardson was, in fact, biased against the defense.
In her declaration, Ms. Sequeira writes, “My co-counsel on the case is Deputy Public Defender Joseph Gocke. I and Mr. Gocke informed Judge Paul Richardson that our retained medical expert was unavailable to testify at the scheduled January 25, 2016, jury trial and requested a continuance.”
Deputy District Attorney Michelle Serafin “did not object to a continuance, agreed that medical evidence was the critical issue in the case, and agreed that the defense would be entitled to present expert testimony.”
Regardless, Judge Paul Richardson “denied the defense motion to continue.”
Ms. Sequeira points out that, in attempting to seek a protective order, he refers to her act of subpoenaing him as an “unreasonable” or an “oppressive demand,” and an “unreasonable violation of the right to privacy of the person.” He characterizes her actions as creating an “undue burden and expense” for him. He further accuses her of “harassing” him.
She writes, “Paul Richardson’s quest for a protective order is meritless and he urges the court to grant him relief by citing statutory authority that is expressly inapplicable to criminal cases. He knew or should have known this.”
In Paul Richardson’s motion for sanctions, he accuses Ms. Sequeira of subpoenaing him in “bad faith or without substantial justification” and asks for monetary sanctions for these reasons or because the “subpoena was oppressive.” According to Ms. Sequiera, he asked for $3,013.50 “in sanctions and his attorney submitted an objectively false declaration to support the request, in that the attorney claimed to have completed work that her law firm later admits she could not have completed at the time the declaration was signed.”
Ms. Sequeira adds, “Paul Richardson’s request for sanctions was meritless and he relied on statutory authority that is expressly inapplicable to criminal cases. He knew or should have known this.” Furthermore, “After withdrawing his request for sanctions, Paul Richardson accuses the Public Defender’s Office of unethical conduct for pointing out that filing a false declaration under penalty of perjury can be perjury and violates an attorney’s obligations of candor to the court. Although pointing out that someone has filed a false declaration is hardly unethical, Paul Richardson claims otherwise and relies, again, on a rule that is uniquely applicable to civil disputes.”
Martha Sequeira argues, “The accusations Paul Richardson has made against me and the Yolo County Public Defender’s Office are evidence that he holds animosity against both.” She adds, “His demonstrated bias and animosity towards me and my office cannot be ignored. A person aware of the facts not only might reasonably entertain a doubt but likely would actually entertain a doubt that the Honorable Paul K. Richardson would be impartial in his dealing with me and my office.”
Today, after much delay, the case against Eric Lovett will go to trial. The trial will be heard by Judge Dan Maguire. The ruling on the disqualification of Judge Richardson from the case against Mr. Dorsey will be heard late in March.
—David M. Greenwald reporting