Defense Argues Delays Hurt Accused’s Housing, Treatment – Judge Denies Request

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By JoJo Kofman

SAN FRANCISCO, CA – The judge here this week in San Francisco County Superior Court denied a request by Deputy Public Defender Nadia Iqbal to dismiss her client’s case. She claimed, “He was ordered to be released from custody Aug. 1…however, he is still in custody at a hospital on the probation matter.”

Off the record, the clerk whispered to Judge Eric Fleming, “The system didn’t update the status change…”

PD Iqbal argued throughout the morning session of proceedings how the accused had been denied his constitutional and statutory rights to a speedy preliminary hearing.

She explained her client’s case has been pending since June 29, and that he is now waiting for this hearing for a second time.

PD Iqbal told the court that because of the prolonging of this case her client has been unable to get behavioral health treatment and may lose his subsidized housing due to being in custody.

Nonetheless, the deputy district attorney opposed the dismissal of the case and requested a continuation of the preliminary hearing.

The DDA explained the basis for a continuance, stating, “Officer Hernandez is a necessary witness for this case; however, she is currently unavailable. She interviewed two of the witnesses/victims in this case,” adding, “we need this testimony to prove the counts in this case.”

The judge determined the DDA didn’t exercise diligence in making sure Officer Hernandez would show up for this hearing and follow the subpoena.

The judge added, “I understand the defense wants this case to be dismissed…There is a statutory right to a preliminary hearing within 10 days; if this doesn’t occur in 10 days and the defendant is in custody, the person must be released.”

In response to the judge’s question about what specific prejudice is posed to her client, the PD stated, “The first issue is that he’s been in custody regardless of the court’s decision since August due to the court’s lag…or whatever it is…”

PD Iqbal continued, “The prejudice is that he is still waiting for his hearing, and this is now his second time waiting. He’s injured by this pending case…the mental anguish that comes with the case hanging over his head…I can’t imagine that feeling…”

PD Iqbal noted the accused’s probation officer advised he get treatment in a behavioral health court, however this pending case is “holding him up from getting the treatment he needs.”

She also emphasized her client’s risk of losing access to his subsidized housing due to his incarceration.

PD Iqbal stated, “The prolonging of this case interferes with all of this. The case has been pending since June…He has a constitutional and statutory right to a speedy hearing,” noting, “he didn’t waive this right.”

In reference to the prosecution’s request for continuance due to Officer Hernandez’s inability to be present, PD Iqbal stated, “This case has been continued numerous times…the People have continued the case over our objection without saying what witnesses/officers aren’t able to make it.”

PD Iqbal emphasized, “The case has been ongoing since June 29 and the preliminary hearing began Aug. 1. The (prosecution) has chosen every single date in this case.”

PD Iqbal described her opposition to the start of a new preliminary hearing, insisting, “I believe we are already in mid-hearing. I want a dismissal.”

However, the judge decided to begin a new preliminary hearing. He stated, “My view is we should proceed with a prelim today because there have been multiple attempts of continuance.”

The judge noted, “I don’t believe the People met their burden to establish good cause to continue…But my concern is that this keeps being kicked down the road.”

In agreement with the prosecution’s request, the court found that the preliminary hearing never previously commenced.

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