Stephanie Lazarus Preliminary Hearing Recap 2~Day 1, PART I

Note: The date of this recap, December 7th, 2010, is actually before the first recap I published. That's because I obtained a copy of December 8th before I was able to get the rest of the transcripts. Sprocket.

December 7th, 2010 Preliminary Hearing: Day 1, PART I

JUDGE
Robert J. Perry, 9th Floor, Dept. 104
Clara Shortridge Foltz Criminal Justice Center
Downtown Los Angeles, CA

PROSECUTION
Shannon Presby, DDA
Shelly Torrealba, DDA

DEFENSE
Mark Overland
Julio Vergara

The proceedings open with all the parties identifying themselves. Shannon Presby and Shelly Torrealba for the people. Mark Overland for the defense. Judge Perry informs Overland that he has already ruled on his request for his client to be in civilian clothing. Overland missed that ruling earlier. "I indicated that I would not be inclined to allow that."

Overland explains that the reason he requested civilian clothing was because he had received requests from the media and he did not know the court’s ruling on media coverage.

Perry states for a preliminary hearing he will not allow cameras. And since there will be no cameras he doesn’t see the need for civilian clothing. However, he does discuss the issue further. The people’s position is to never oppose cameras.

The clerk informs the court that the media is also asking about using their computers and the ability to text message. But first, Judge Perry goes back to the issue of cameras and asks Mr. Overland what his position is.

Overland is against cameras for the reasons Judge Perry indicated previously (potential tainting of the jury pool).

Judge Perry comments further. He doesn’t believe it’s necessary to expose a LAPD officer to going on camera. Perry’s position is that the camera can negatively impact the participants and witnesses. He also feels it impacts juries. “I’m very generally negatively opposed to cameras in the courtroom. And you can call me old school, so it is. I’m not going to allow cameras. I’m not going to allow people to work on their computers either....”

Judge Perry doesn’t believe that the reporters will use their laptops for work and that laptops in the courtroom can cause a distraction. Judge Perry rules he would allow a sketch artist.

Lazarus has now joined the proceeding and the first issue is a defense motion to dismiss for violation of due process.

The prosecution states for the record that they are equal co-counsel. They then move onto the motion.

Overland’s brief was filed on October 20th, 2009. The people’s opposition was filed on November 30th, 2009 and the defense reply on December 4th, 2009. Judge Perry commends the parties “..for the scholarship and excellence reflected in your written papers.”

Judge Perry has some questions and first asks the people.

The people’s motion is to rule on the defense motion after the preliminary hearing, citing ARCHERD and other cases.

Judge Perry then addresses Overland and gets on the record the defense position that the LAPD was negligent in the way that they investigated the case. That the LAPD acted in “reckless disregard” of the defendant’s rights. In the defense papers, there is a declaration by Mr. Luper (spelled throughout as "Ruper" in the court transcript) that the LAPD was at least negligent in ignoring leads provided to them (in the initial investigation).

Judge Perry’s question is, “How do you define reckless disregard?” And he states that the Federal cases that use that phrase, have used the phrase of “reckless disregard of circumstances known to the investigators which suggested appreciable risk that delay would impair an ability to amount an effective defense.”

Overland concedes that the LAPD was not aware of circumstances that brought a risk and delay to impart an effective defense. Overland is trying to get the court to concede to a different interpretation of “reckless disregard” where it doesn’t imply any kind of intent or any kind of state of mind on the part of the police department. Overland states, “All it implies is circumstances from which that could be inferred.”

Perry brings up the other phrase that the federal courts talk about is “acting in reckless disregard of it’s probably prejudicial impact on the defendant’s ability to defend.” Judge Perry points out that the defense is now taking a much broader view of the phrase “reckless disregard.”

Overland argues that he doesn’t think he is. “I think we’re both saying the same thing. I think what we’re saying is that the circumstances are such from which an inference can be drawn by the court that they just didn’t care. And that’s what recklessness is, that - - the facts are such that the actor’s state of mind is that ‘We just don’t care.’ And I think the latest discovery provided by the prosecution fortifies that.”

The prosecution informed Overland that they wish to cross examine Mr. Luper but Judge Perry indicates he is “not inclined to allow that.”

Overland argues to keep his private investigator off the stand. “.... this is something that could have been done in 1986. This is not something that had to wait 23 years in order to be developed.”

Overland continues that if an investigation had been made immediately, and a connection made between the victim and his client then a ballistics comparison could have been made back then. Overland continues that it’s unknown what type of ammunition was used by the department back then. “All we have now is the recollection of one individual relating to 1983 and 1984.” The prosecution wants to add that to the list of evidence to draw an inference that the LAPD used the same type of bullets that killed Ms. Rasmussen.

Judge Perry states, “Okay. So you’re adding this to the list of what I call prejudice claims that you have listed in your motion.”

Judge Perry informs the parties that they don’t have to stand to address the court. He’s comfortable with everyone addressing him from their chairs.

Overland concedes a point of fact, a modification of his third-party culpability claim. This is about the now-deceased witness. He was wrong about who was being identified in a description.

Judge Perry wants it made clear that Overland still maintains that his client has been prejudiced by the passage of time because of the death of the witness who is no longer available to testify as to what she saw and heard the day Ms. Rasmussen was confronted.

Perry states that he has questions about the chain of custody arguments Overland is making. Overland is challenging tracking eleven pieces of evidence for twenty-three years.

Perry clarifies that Overland’s objection and claim of prejudice goes to whether or not an adequate chain of custody can be established by the reports; that they’re missing some chain of custody reports.

Overland replies, “I think it’s more subtle than that. I think my concern is that when objections are made as to chain of custody, the prosecution is going to say that it’s just speculation as to whether or not there was any tampering with the evidence or not and I’m not going to be able to counter that because of the absence of those reports.”

Judge Perry states that he was concerned about the chain of custody regarding the 1986 physical evidence, including the bite mark swap. The people confirm that they have the swab and Overland confirms that he’s raising an issue with the chain of custody.

The people state that there are property reports documenting the collection and booking of the evidence into the property room (they are specifically talking about the swab). The people’s response is that there is no gap in custody. And, there are reports documenting it’s removal from the property room for when it was sent off to be analyzed. The people state that when it was replaced back into evidence, there is a report documenting it was put back.

Ms. Torrealba states, “So those documents do exist and have been provided. There was a period of time where the evidence was not being analyzed, a substantial period of time, and I believe that’s what counsel is referring to, but there was no movement of the evidence at that time.”

Overland disagrees. He claims there are gaps in the reports that Torrealba is referring to and Judge Perry agrees that is what he thought Overland said. That there are gaps.

The 911 call tapes were eventually destroyed and Overland claims that his client is being prejudiced by the destruction of those tapes and all other (recorded) communications.

Judge Perry clarifies one last time all the issues Overland is raising in his motion before he rules.

Judge Perry first outlines the basic case. It’s a “cold case” murder prosecution. The killing of Ms. Rasmussen was investigated as a murder but the investigation stalled and no charges were brought.

September, 2003 a DNA test was requested.

February, 2005 the test was finally run and came back belonging to a female not Rasmussen.

May, 2009, a DNA match was made from the bite mark swab to the defendant.

June 5th, 2009 Defendant arrested.

Judge Perry then outlines the defense motion that the 23-year delay from the date of the killing to the date of arrest was due to protracted negligent inaction and negligent investigation and mishandling of evidence by various government agencies. (Judge Perry outlines the details of that prejudice some more.)

The argument is this has so prejudiced the defendant’s ability to defend herself as to deprive her of her constitutional right to a fair trial and that due process mandates that all changes be dismissed.

The prosecution asserts the defense has not suffered substantial prejudice as a result of the delay, part of the delay is understandable because of the recent use of DNA analysis and that dismissal is not the remedy because there is no evidence that the delay was intentional by the government to obtain a tactical advantage. There’s further argument in the people’s motion that a decision to dismiss should only considered after the preliminary hearing to fully weigh and consider the effect of the delay on the defense.

Overland opposes a delay in the ruling. He wants a ruling today.

Overland adds one more argument in opposed to the prosecution’s assertion that DNA analysis is relatively new and contributed to the delay. Overland cites the following cases People vs. Axell at 235 Cal; State vs. Coldberg 257 Kansas; State vs. Montalbo, Hawaii; People Vs. Adams, Michigan, State vs. Woodall, West Virginia; where DNA analysis was admitted into a trial far earlier than what the people are arguing is a reasonable explanation for the delay in investigation.

Judge Perry states that the California Supreme Court has recently dealt with issues of “due process” clauses of the Federal and State constitution with the case of People v. Nelson, 43 Cal. 4th, 1242. The opinion was filed on June 16th, 2008.

Judge Perry states that he will rely heavily on on the California Supreme Court’s ruling in People v. Nelson for his ruling today.

Judge Perry goes onto talk about the statute of limitations and the fact that there is no statute of limitations for murder, and this reflects the governments and society’s interest in bringing murderers to justice.

Judge Perry quotes from People Vs. Martinez, 22 Cal. 4th at page 767, (which is the case quoted by the Nelson opinion). “Due process protects a criminal defendant’s interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.”

The Nelson ruling states that mere delay is not a sufficient basis on its own to raise a presumption of prejudice to the defense, but that a weighing process must be involved.

The defense must raise or show prejudice and that prejudice must be balanced against the justification for the delay.

There is quite a bit of dialog by Judge Perry, going over in great detail, what the defense is claiming and going through the “weighing” process. Judge Perry brings up the decision in the Fowler case, 162 Cal App. 3D, 215, which in general states the defense doesn’t have to absolutely prove that they’ve been harmed by the delay, but that they have to raise plausible arguments.

Judge Perry asks the defense if any other blood types were found at the scene. Overland replies, “Yes,” but Torrealba replies “No.” Going just by blood type, there were types A, AB and O, but Torrealba states that DNA testing resulted in all the blood tested coming back to the victim.

For the moment, all the court is asking is about blood type and so he will accept the defense’s representation for the purpose of the motion.

Judge Perry states that the different blood types has some possible or plausible prejudice to the defense.

Judge Perry is not totally convinced that the absence of chain of custody record has caused or will cause significant prejudice to the defense. If anything it may be more prejudicial to the prosecution.

Judge Perry doesn’t put much weight on the argument that the destruction of the 911 calls is prejudicial to the defense. It’s speculative and doesn’t see how they could have been of any value to the defense if preserved.

There was initially a bite mark exemplar that was missing but the coroner’s office found it so that issue in Overland’s argument is void now.

There were initially missing tapes of witnesses including a polygraph examination of the husband. Those items have also been found.

Since those items have been found, Judge Perry states, “Okay. Well, good. I think your motion has certainly lit a fire under the people to get this stuff. If nothing else, you’ve accomplished that.”

Then the missing GSR kits are discussed. They’re still missing. Judge Perry concedes that the missing GSR kits could have plausible value to the defense. He doesn’t concede it, he says they could have.

The ammunition issue. Judge Perry doesn’t put much stock in the defense argument that the police, if they acted quickly enough, could have made a match on the gun because his client reported her gun missing two weeks after the killing. But Judge Perry does accept the argument that the issue of what kind of ammunition was used by the LAPD could have been better, more easily determined back in time than currently.

In summary, Judge Perry find that the defense has made a showing of plausible prejudice due to delay, but at the same time he thinks it’s a “fairly minimal showing” but enough to compel the people to justify the delay.

The California Supreme Court in Nelson, noted that the Federal standards differ from California’s standards in regards to what constitutes justifiable delay. Judge Perry goes over these distinctions by citing specific Federal cases.

In the Federal standard, there is an intentional aspect. It’s why Judge Perry asked Overland whether he would consider the delay to include reckless disregard.

JP: I don’t think based on what I’ve been presented in these papers that there was reckless disregard of Ms. Lazarus’ due process rights by the allegedly negligent investigation overlooking of leads complained of by the defense.

JP: So I’m not accepting that there is reckless disregard, but it is very clear that the Federal claim for dismissal for due process violation involves something more than a delay caused by negligence, and this is important in this case because the people are arguing that the Federal standard should apply due to proposition 8 which was passed in 1982, (snipped).

So, to wrap up 27 pages of court transcript, Judge Perry issues his ruling. (Judge Perry then went on for another 3 pages after, explaining why he applied the Federal standard.)

JP: I accept this argument that Proposition 8 requires this court to apply the Federal standards. And according to that standard, I find that the motion should be dismissed because I do not think that the defense has persuaded the court that the delay was intentional to gain advantage or constituted reckless disregard as the Federal cases have further defined reckless disregard of the defendant’s rights. (snip)

JP: ...and I find that it is abundantly clear while the delay in bringing the charges against this defendant has caused some possible prejudice to her ability to defense, the strong justification for delay compels the conclusion that there was absolutely no violation of her right to due process. That’s where I come out. (snip) So I’m going to deny the motion to dismiss for violation of due process.

Continued in Day 1, Part II....

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