Tuesday, October 20, 2009

Change of Venue Motion Granted in Mehserle Case

In the highly-publicized trial of former BART police officer accused of murdering Oakland resident Oscar Grant, the defense's motion to have the trial moved out of Alameda County has been granted. Superior Court Judge Morris Jacobson ruled that the defense had shown that Johannes Mehserle could not get a fair trial in Alameda County for the fatal shooting of Oscar Grant on the platform of BART's Fruitvale Station in Oakland early New Year's Day. A hearing is to be held to determine where the trial should be held.

In support of his ruling, Judge Jacobson wrote that: "The incident is viewed by many as being a case about race relations between the police and minority communities . . . In essence, this case is an allegation of murder under color of law, inseparably entwined with a broad-scale political controversy."

The centerpiece of the defense's argument to move the trial was a telephone survey it commissioned of 397 Alameda County residents. It found that 98 percent of those polled had heard of the case. The defense also used an "expert" in support of its motion for change of venue. However, Judge Jacobson criticized some of the expert's opinions and "findings" and wrote that he was left "with the uncomfortable concern" that the expert "might be trying too hard to please defense counsel." The judge also reminded the parties that "Systematic exclusion of any cognizable group of jurors, because of a party's pre-judgment that there exists a group bias, is wrong."

Tuesday, October 13, 2009

Recent Case Holding: People v. Bleich (denial of factual innocence motion)

The dismissal of terrorist threat and stalking charges against a Southern California pharmacist did not warrant a finding of factual innocence, the Fourth District Court of Appeal ruled Friday.

The Court rejected Ida Bleich’s request for the finding, concluding that other evidence did not completely exonerate her, but instead provided a strong basis from which a reasonable person would believe she committed the offenses.

An employee at the CVS Pharmacy accused his supervisor (defendant Bleich) of leaving a profanity-laden message on his voicemail in the middle of the night. The recorded call apparently threatened to slit the employee’s hroat and put him in a body bag, among other things. An officer with the El Cajon Police Department made a copy of the message on a cassette-recording device, and police confronted Bleich at the pharmacy where she worked when another CVS employee—listening to the message on the cell phone—identified her as the caller and corroborated the allegations of harassment.

According to police, Bleich specifically denied the allegations. Officers arrested Bleich, who told them that she did not have a cell phone with her, but police discovered later that her son came to the pharmacy after the arrest and retrieved a cell phone. When contacted, the son denied having the phone and avoided further calls.

Bleich was charged with making a terrorist threat and stalking. When the recording was played during a preliminary hearing, the CVS employee who had previously identified Bleich described the voice as different from what she had heard, and a police officer said the recording was “not the way the voice sounded” on the cell phone. Accordingly, San Diego Superior Court Judge William J. McGrath concluded that the recording did not sound like Bleich and—finding insufficient evidence to bind her over for trial—dismissed the charges.

Bleich then petitioned for a finding of factual innocence and for her records to be sealed and destroyed under Penal Code Sec. 851.8. The statute allows petitioners who show that the state should never have subjected them to the compulsion of the criminal law, because no objective factors justified official action, to purge the official records of any reference to such action.
Noting that he was not convinced it was Bleich on the recording, the judge said that the circumstances—particularly Bleich’s statements to police and her initial denial related to the cell phone retrieved by her son—led him “to think that there might be reasonable suspicion that she had some involvement in the making of this telephone call as an accessory or otherwise.”

On Bleich’s appeal, Justice Patricia D. Benke agreed, rejecting Bleich’s argument that the facts showed that no reasonable cause existed to believe that she committed the offenses charged.
Benke wrote that McGrath’s factual determination that the voice on the cassette-recording was not Bleich was not alone sufficient to sustain Bleich’s burden of proof to show factual innocence, and that the prosecution’s failure to present an adequate recording was an evidentiary failure that contributed significantly to the dismissal.
See People v. Bleich, D053808.

Tuesday, October 6, 2009

New DA in Alameda County

Alameda County's new DA is now Nancy O'Malley, who has replaced Tom Orloff. She was his chosen successor to serve out the rest of his term, which expires in 9 months. Then, it will be up to the voters to elect a new DA.