Judge Dan Maguire didn’t do what Deputy DA Ryan Couzens wanted in the case against Lauren Kirk-Coehlo, accused of a hate crime for a January vandalism of the Islamic Center of Davis. Over the objections of the prosecutor, the judge granted his request for a delay, but only a day.
At arraignment last week Mr. Couzens had filed a motion to deny bail, arguing that not only does the case involve “substantial felony vandalism” of the mosque, but the search warrant of Ms. Kirk-Coehlo’s residence revealed “communications that raise grave concerns for public safety.”
David Dratman, who along with Steven Sabbadini represents the defendant, argued that they had agreed last week to continue a bail hearing to this date. They filed it with two days notice, which he said was appropriate and that a bail hearing request does not require ten days’ notice.
Mr. Couzens countered that this was an unusual request in that there was a full briefing with points and authorities rather than a simple brief. He was unfamiliar with case precedents to proceed in less than the required time.
Mr. Couzens argued that he basically received email notice at the end of the day on Tuesday and sarcastically pointed out that the DA’s office, which had received it earlier, is not a “hive mind” that can immediately notice him when a brief is filed.
Judge Maguire asked the attorneys to assess the applicability of PC section 1270.2 which requires a bail hearing within five days of arraignment.
In the defense brief they argue that Ms. Kirk-Coehlo is 30 years old and a lifelong resident of Davis. She graduated from Davis High, and attended first UC Santa Barbara and then UC Berkeley. She worked as a legal intern for the Sacramento County District Attorney’s Office before moving to Mountain View and then returning to Davis in 2011.
In addition to her mother being a retired Administrative Law Judge, “She has tremendous family support and her father has advised that she is welcome to reside in his home in Woodland.”
The defense argues that Ms. Kirk-Coehlo has “an insignificant criminal history and is capable of complying with terms and conditions of probation.” She was previously convicted of trespassing in 2004, over 12 years ago when she was a freshman at UC Santa Barbara. She paid a fine and completed 36 months of probation.
He argues, “Ms. Kirk-Coehlo was aware of the fact that she was a target in this investigation, since a search warrant was executed on February 1, 2017, at her Corona Drive residence in Davis. Ms. Kirk-Coehlo did not flee the jurisdiction, even though she knew that she was target of the investigation. Rather, Ms. Kirk-Coehlo’s lawyers reached out to state prosecutors on February 3, 2017, offering to make arrangements for surrender on a certain date and time should law enforcement believe they had sufficient probable cause to make an arrest.”
There Mr. Dratman and Mr. Sabbadini argue that she is not a flight risk.
They pointed out that, based on the initial discovery, “it is clear that the perpetrator of this crime possessed no weapons or firearms of any type. The crimes charged are no crimes of violence or crimes involving threatened violence to a person or a group.”
A search of her residence found no weapons, no materials to make bombs, or evidence of any political activity.
They write, “Defense counsel believe that a condition of release ordering mental health counseling and treatment is appropriate.”
They write, “Should the Defendant be released she and her family have plans for direct and immediate consultation and treatment with a psychiatrist in Sacramento, California, and she has agreed to follow any and all treatment recommendations of any mental health providers, including making and keeping all appointments and taking any prescribe medications. She also is committed to attending weekly therapy with a local psychologist.”
As noted, the bail schedule in this cases calls for a total of $40,000 in bail. They argue, “bail is a matter of right unless the offense is punishable by death or a public safety exception is established.”
The defense argues, “The only other exception is in felony cases when the Court finds, based on clear and convincing evidence, that the person has threatened another with great bodily harm and there is substantial likelihood that the person would carry out the threat if released. In this case, the Defendant has not threatened another nor is there substantial likelihood that public safety is at risk.”
The defense addresses the alleged hate speech arguing, “The comments appeared to have been ‘cherry picked’ from over 35,000 Tweets and re-Tweets, and the Defense has not been provided with the actual source materials in order to put the comments into proper context.”
They note that some of the internet searches have been misinterpreted by law enforcement. “For example, ‘bombvest’ is an Instagram URL (handle) of a comedic entertainer who publishes parodies and satires. Similarly, ‘throw Jews down the well’ is a song parody/satire by Sash a Barron Cohen.”
“The other quotes that the Defense has been made aware of appear to be constitutionally protected speech,” they argue.
“A high bail of $1 million dollars or not bail as requested by the prosecutor, based on internet hyperbole as a predictor of future conduct, is not justified considering the facts of this case and the bail schedule.”
In their points and authorities, the defense notes that the Constitution states that a person is entitled to bail “as a matter of right” unless the defendant has been charged with a capital crime.
In this case, they argue that “there is no crime of violence, or threatened violence charged and there is no evidence that would support a finding that her release would result in great bodily harm to others that would rise to the level of ‘clear and convincing evidence.'”
Also, “Ms. Kirk·Coehlo has no history of causing great bodily injury or using or possessing a weapon. Indeed, she has no convictions for any felonies, either violent or serious. Thus, even in the light most favorable to the prosecution, this is an isolated incident.”
There is no evidence that her release “would result in great bodily harm to others.” Therefore, they argue that her case does not fall within the exceptions of bail in the California Constitution.
Finally, the defense argues that public safety is not a legitimate issue in setting bail. Here they argue, “It was long ago held that the California Constitution is violated where dangerousness of the accused, rather than likelihood of the accused to appear in court, is employed to set or raise bail.”
While there was an attempt to reverse the constitution through ballot initiative, the provisions of Proposition 8 never went into effect.
The defense then argues, “Once bailable release is deemed appropriate, as is the case here, then bail set at a figure higher than an amount reasonably calculated… is excessive under the Eighth Amendment.”
The defense argues, “It is urged that this Court recognize that ‘[t]he sole issue at a bail or own recognizance hearing is whether the detainee will appear for subsequent court proceedings if released, and the sole purpose is to ensure the Defendant’s attendance in court when it is required.’”
On Thursday, Judge Maguire, over the strenuous objections of the prosecutor, ordered an expeditious bail hearing for Friday. He acknowledged that this was not just a bail hearing motion but that the defense raises substantive issues including the argument highlighted above of the unconstitutionality of the motion.
He granted a short continuance to Friday afternoon.
Ryan Couzens put on the record the argument that “there is not sufficient time to respond to this motion.”
—David M. Greenwald reporting