During a preliminary hearing last spring, two police officers in the courtroom noticed one of the defendants in a multi-defendant case make a hand gesture towards the complaining witness who was testifying on the stand. The officers interpreted this as a “slashing” hand gesture, as though the defendant, Eric Lovett, was threatening the witness.
They alerted Deputy DA Amber Zambor, who added the felony charge of dissuading a witness to Mr. Lovett’s already serious list of pending charges. The Yolo County Public Defender’s Office determined that Judge Richardson had a clear line of view and therefore was a percipient witness to the incident. The result of that was that Mr. Lovett’s case was ultimately separated from the three other co-defendants, who were tried, convicted and sentenced – one of them to 68 to life, in an attempted murder trial that occurred last summer.
The matter has created additional work for the court system, as Mr. Lovett had a separate preliminary hearing, there were multiple motions to quash the subpoena issued by the public defender’s office, and this week, jury selection began on a new trial.
Not only that, but the matter has created a rift between Judge Richardson and the public defender’s office which has moved to disqualify him in the Darnell Dorsey matter, a Davis case where a two-year-old died, allegedly as the result of child abuse by Mr. Dorsey.
From the perspective of Judge Richardson, he claims he didn’t see anything. At a trial readiness conference, he stated, “I did not witness anything that would come up.”
He argued that he should not be made to testify “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.”
The problem that the judge faced in his arguments, however, is that he was citing case law that was applicable to his being a more general witness, rather than an actual percipient witness.
Some have argued that the entire incident was caught on video. But, by all accounts, that video was inconclusive at best.
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.”
The public defender’s office clearly wants Judge Richardson to get on the stand, and to testify that he didn’t see anything – that he didn’t notice the demeanors of the witness or the defendant change at this critical time.
The public defender’s office has a point here. The video takes the footage almost out of context. You don’t see the reaction of the witness, if there is any. You can’t gauge the conduct of the defendant. And, as two different parties that are largely neutral to this dispute attest, the content on the video is “confusing” or ambiguous at best.
Much Ado about Nothing
If this dispute seems like much ado about nothing, you have a point, but that is in our view the overriding point here. The DA’s office pushed this matter even though the conduct Mr. Lovett was with charged already could have gotten him life. He is accused of being an accessory after the fact to the shooting – why did they need the dissuading a witness charge?
Deputy DA Zambor vehemently argued, in her effort to join the cases, that there would not be “any unfair prejudice” and “they are not meant to inflame the jury or to add a weak case to a stronger case.” She added, “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.”
But it is obvious, her protestations to the contrary, that she knew that, by adding the dissuading a witness charge against Mr. Lovett, it would bolster the gang case against Mr. Reyes as well. It fits the DA’s narrative that gang members in part operate through intimidation and what better way to demonstrate it than with a video of a person they say was trying to silence the key witness through a serious of throat-slash gestures.
The problem they faced is that the video was weak evidence. The defense attorneys were wanting to get the proceeding on with. And the public defender’s office was intent on calling Judge Richardson – an act that was unlikely to occur, but would cause delays. So the DA dropped the charges against Mr. Lovett, refiling them and, in effect, severing the cases. The DA was able to get the convictions without the added evidence.
All of this begs the question – why the need for such dramatic tactics that are unnecessary and which did not appear to play any role in the proceedings?
The Case for Bias against Judge Richardson
That leaves us with one more piece here. Does this whole episode mean that Judge Richardson is biased against the public defender’s office? To bolster the case, the public defender’s office cites from the harsh language in the motion to quash by Judge Richardson.
Deputy Public Defender Martha Sequiera argues that, in attempting to seek a protective order, the judge 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.”
While the judge may have signed off on the language, it seems obvious that this is simply the work of hired attorneys doing their standard job of attempting to quash a subpoena. It seems likely that the attorneys were not thinking in terms that they were representing a judge here, but it probably isn’t not indicative of bias by the judge.
That their legal arguments seem poor and yet apparently bought into by a presiding judge perhaps indicts the state of the system.
However, the one piece of information that raises a flag is the unreasonable position by Judge Richardson on a continuance.
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.” He would ultimately reverse himself, but his denial does seem patently unreasonable, given the stakes for Mr. Dorsey and the fact that the DA didn’t object.
Clearly, the public defender’s office will send the message for a while, using the more standard Code of Civil Procedure section 170.6 motion to disqualify Judge Richardson in new matters.
Mr. Lovett is entitled to a fair trial and he is being denied a witness he knows will say that he was sitting probably 20 to 30 feet from him, with a clear line of sight, and saw nothing. That witness will not be able to testify in this case and that should be a matter of some concern.
From our standpoint, however, this episode once again highlights our chief concern with the DA’s office overblowing small matters into serious felony charges, and at least two judges – Richardson and Rosenberg – not putting a stop to this practice.
—David M. Greenwald reporting