Defense Lawyers Win Due Process Argument, Insisting Missing Cop Body-Cam Footage Needed before Preliminary Hearing

By Sophia Barberini

ALAMEDA, CA – Eny Avilaalmendarez and Jose Rosales appeared in front of Alameda County Superior Court Judge Stephanie Soto for their preliminary hearing here last week, only to be turned away due to the difficulty their lawyers had in retrieving body camera footage.

Both face felony possession of a controlled substance, possession for sale of a controlled substance and possession of methamphetamine for sale.

Rosales’ attorney, Jesse Adams, revealed that, despite last Tuesday being the 30th court day, or the last day the court could conduct a preliminary hearing for the defendants without a time waiver, he could not adequately conduct the preliminary hearing.

“We are at the 30th court day. We still don’t have body-worn camera (video). According to the police report, it was uploaded to evidence.com, so it doesn’t seem to me that there should be some delay,” said Adams.

Avilaalmendarez’s attorney, Marlene Jobe, agreed, asserting that she is also not prepared for a preliminary hearing, given that they could not retrieve body camera footage that is imperative to the case.

Adams continued, “Mr. Rosales has remained in custody on $80,000 bail that he is unable to meet. My request to the court, because I think it violates his due process to go forward with this preliminary hearing without body-worn camera, is that he be released on his own recognizance to allow for the production of that evidence.”

Deputy District Attorney Christa Hall also claimed to be searching for the evidence, explaining that the discovery is actually held out of county with the San Francisco Police Department.

“Our team has been working through [the SFPD] legal department which they require us to go through. I understand that the report says it has been uploaded to evidence.com, but it has not been shared with us through that, nor has the legal department said that is how we are going to receive it.”

Despite her work to retrieve the evidence, DDA Hall asserted, “I can understand where defense counsels are both coming from, but I don’t think it is enough to not move forward today with the preliminary hearing.”

Jobe disagreed, highlighting the importance of the body camera footage. The footage, said Jobe, revealed multiple officers with a warrant going into a property where they found both defendants and various drugs.

“I think [the footage] is incredibly meaningful because it contains statements from both of our clients. These are translated statements because both of our clients are Spanish speakers. I think the People are planning to argue that the person who translated is a qualified Spanish speaker and that we should accept this chain of interpretation, which we then have no way of challenging because we can’t hear the original Spanish,” argued Jobe.

Jobe further explained that, without the discovery, the defense attorneys “can’t challenge anything like the location, who lived in that location, or where the drugs were actually found.”

Jobe noted her confusion as to why the evidence is so difficult to gather. The evidence is “uploaded to a cloud somewhere. The idea that we are 30 court days into this, that we cannot email a link over, which I appreciate is not Ms. Hall’s fault, but I think that we have a right to discovery pre-prelim and our clients have a right to prepared counsel,” argued Jobe.

Defense Attorney Adams concurred with Jobe, both motioning to continue the case.

DDA Hall, acknowledging that the defense attorneys had “reasonable arguments,” claimed, “It is not simply a link. There are videos they need to download onto a USB or DVD that we have not received.”

Despite DDA Hall’s push to conduct the preliminary hearing, Judge Soto concurred with the defense attorneys.

“I understand Ms. Hall that you’ve done everything you can. Court is very concerned that these are body-worn cameras not only with statements, but of discovery of contraband. The Court is going to OR Mr. Rosales and I am going to grant the motion to continue,” said Judge Soto.

The new preliminary hearing date is set for Nov. 30.

About The Author

Sophia Barberini, from San Mateo, CA, is a fourth-year student at UC Berkeley. She is double majoring in Political Science and Legal Studies and hopes to pursue a career in law.

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