Stephanie Lazarus Criminal Appeal, Oral Arguments

 

Ronald Reagan State Office Building

300 S. Spring Street, Los Angeles, CA

UPDATE 6/6/19 edited for spelling
UPDATE 7:15 PM edited for grammar, spelling, clarity
June 11, 2015
When I arrive at the state building where the local appellate court is held, I stop at the security station to see if it’s possible to photograph the catwalks inside the atrium space. I've tried to describe this space before, but there's nothing like a photo to give readers a sense of what one is talking about. The building’s security manager is kind but says that because of “security” I cannot take photographs. I thank him for his time then head to the second floor cafeteria to get a bottle of water.

The courtroom is one floor up. I talked about the Ronald Reagan State Office Building back in April 2001, when I was here for the oral arguments in the Phil Spector appeal. The center of the entire building is an atrium space for the first four floors.  There are open catwalk bridges that crisscross back and forth for the second and third floors. On the ground floor are trees, huge murals and animal statues.

As I exit the cafeteria, I look up and there are Jayne and Michael Goldberg right outside the courtroom on a catwalk, one floor up. Jayne is giving me a big wave. I can see her smile.

Jayne comes down one floor to greet me and we take the stairs back up together. We both marvel at how beautiful the space is. To me, the atrium space is very serene and peaceful this early in the morning.

8:22 AM
The Rasmussen family arrive. Nels, Loretta, and their two daughters Connie and Teresa, are with them. Hugs are exchanged all around. Jayne tells everyone that her daughter Mollie is graduating from college in a few days with a degree in Film & Digital Media, with an emphasis on production. Her senior film is titled The Fifth Stage, and cover the topic of grief and the myth of closure. It will be screened Friday and will be up on VIMEO soon. Once it’s on the web, T&T will link to it.

8:43 AM
We’re inside the courtroom. There’s seating along the back wall facing the judges. There is also seating along the two side walls, but those are roped off at the moment. As the back area fills, the court staff open up additional seating areas.

Directly to my right are a group of five interns. An older woman arrives and asks me to move my bag so she can sit beside her interns.

The appeals court does not utilize court reporters. The proceedings are tape recorded. Attorneys start to arrive.

A few moments later I see Lazarus’ mother Carol, her sister Judi arrive. With them is a blond woman who I saw attend the trial.

A tall, sleek looking man with a long gray ponytail gets up from the well area and goes over to speak to Judi. This is Donald Tickle, Lazarus’ state appointed appellate attorney.

Sometime in early 2014 Lazarus moved from the Central Valley Women’s Facility in Chowchilla, California, to the California Institution for Women,  in Corona, CA. This location is much closer to her family members in Los Angeles.


Many people have asked me about Lazarus’ marriage. Lazarus’ husband filed for divorce Feb 13, 2013. The divorce is not finalized yet.


A large group of young people arrive. With them is a familiar female DDA face I’ve seen around the criminal court building. This group is directed to sit in the seats on the right side of the well of the court.

8:50 AM
Matthew McGough arrives. His hair is quite short. He must have gotten it cut since I last saw him.

Court staff continue to direct late arrivals to the remaining seats. It’s a mix of older suited men and young intern-looking men and women. Now, almost every seat in the gallery is taken. 

I note the carpeting and seats. It’s a medium green with hints of teal. More people continue to arrive.

9:03 AM
Detective Greg Stearns, and DDA Paul Nunez arrive. Stearns, along with his partner Dan Jaramillo, interviewed then arrested Lazarus; DDA Nunez co-prosecuted the case along with DDA Shannon Presby. I count only 3 or 4 empty seats left in the entire gallery.

The large bench has seats for four justices. The lower part of the bench is a matching tile/marble to the carpeting and seats with the top of the bench a polished dark wood.  The wall behind the justices is the same color of stone.  There is a dropped ceiling over the three gallery seating areas. Subdued light comes in through high mission style windows.

About a minute later, the four justices come out and take the bench. The Presiding Justice, Norman L. Epstein, states this is District Four. Justice Epstein informs the gallery he is not part of the three judge panel. The three judges consist of:

Associate Justice Thomas L. Willhite, Jr.
Associate Justice Nora M. Manalla
Associate Justice Audrey B. Collins 



This is not the same panel that heard the appeal of Nels & Loretta Rasmussen in their suit to sue the LAPD over the investigation into their daughter's death.

The panel will call the shorter time cases first. The panel calls People v. Lazarus. I’m relieved. We won’t have to wait here through several other cases.

Appellant attorney is Donald Tickle. The respondent for the state is Deputy Attorney General IV, Michael A. Katz.

Tickle starts off arguing the pre-accusation delay and which standard the defense argues should apply. The trial court ruled the federal standard should apply.  Tickle tells the panel the trial court said [California] Prop 8 didn’t have the independent force and effect.  Tickle argues that even negligent delay is sufficient.  The state, didn’t do any testing for 23 years after the crime. Funds were not allocated for a cold hit data base. Tickle cites Nelson to support his argument.

The justices respond that they don’t second guess a department [organization’s?] decisions on the allocation of funds, to get around to doing it [testing DNA]. One of the justices proposes, “Let’s say, if they did have the technology. ... she had 20 years of freedom. ... How is that prejudicial?”

Tickle comes back with arguing the profiler and mini filer testing. He also argues that the delay [in testing] must be for a valid police purpose. Tickle argues that several individuals identified her as a suspect after the crime. [I miss how this is relevant to Tickle’s argument.]

One justice asks, "Frankly Mr. Tickle, .... was any legitimate [explanation] ever offered at trial for the defendant’s DNA found on the victim at or near the time of death?" Tickle replies that the burden is not on the defense to show identity.

I believe the trial court answers that they balance the [?] for delay against the evidence. “What is the prejudice?” Tickle argues that the only evidence that there was a bite mark was on the envelope. The dentist could not say definitively it was a bite mark.

[I want to raise my hand and and say, What about the coroner’s testimony!!! She testified it was a bite mark! What about Jennifer Francis who testified  she saw a good deposit of amylase in the swabbed sample? Amylase is an enzyme and a component of saliva.]

One of the justices responds, “So what if it was a hickey? ... It’s her DNA.”

Tickle then goes on to argue that the defense position is, that it’s an error to match random match equivalency. The result is the jury will under estimate the possibility of another person.

I believe a justice asks, how does that get to the delay that causes prejudice. How does the delay, ... verses what the evidence proves?

Tickle brings up the fact that male DNA, not attributable to the victim’s husband was on the wall [of the stairs leading down to the garage]. There was male DNA on a blanket. The justices respond, “But none of that goes to explain your client’s DNA on the victim.”

Tickle argues something to the effect that she would have been injured in a fight and that not a single witness stated that Lazarus had any marks on her. Justice Manalla replies, “There were witnesses who testified about her physical superiority.”

Tickle and the justices go back and forth as to whether or not Lazarus could have had an accomplice Tickle argues that random match probability is not equivalent to no other person.  The justices come back that what Tickle is arguing is purely speculation.

I believe it’s Justice Manalla who states, “I get back to the common sense notion here. What is the prejudice here? ... That your client’s DNA was found in the struggle. ... You’re not arguing insufficiency, given what that argument was. Surely the jury was entitled to conclude she was there beyond a reasonable doubt.”

Tickle states the defense is not arguing insufficient evidence.  It’s whether there is a reasonable possibility that the jury [could have seen the evidence a different way?].

The court responds: It seems to me inescapable that your client was present at or near the time of the murder. It seems irrelevant that there was DNA on a stereo wire or elsewhere.  ... There were no chain of custody issues claimed at trial. Tickle states he is not claiming [chain of custody?] ..

[Given the state of the victim’s body .. the bite mark was at or near the time of death.]

The justices state, “It's not as if your client is claiming she showed up there, they had a fight, she bit her there and someone else killed her."

Tickle still argues that the expert could not say it was a bite mark. “The court is accepting the prosecution’s fallacy.  ... That goes to the weight of how you weight the evidence.” Tickle cites [Brown v. McDaniel?], a US Superior Court decision.

I believe the court responds that, [the case cited], that goes to the DNA did not belong to the defendant.

Tickle argues there is reason to believe there were male burglars in the neighborhood at the time of the incident. He also agues that no witness said that Lazarus remained obsessed with the victim’s husband after their last meeting.

A justice asks, “Is it your argument that irrespective of DNA percentages [the justice does mention the DNA numbers, the one in so many billions of random probability] .... the jury could conclude, find ...”

Tickle responds, “Could find reasonable doubt of the prosecution’s theory. ... Is there reason to believe there’s reasonable doubt? ... The 3rd party culpability evidence was not admitted. Tickle brings up the testimony of former FBI profiler Mark Safarik.

[Did Mr. Tickle just say, “If this is going the way I think....”?]

Tickle argues with the court that regarding the bite mark, no witness testified that wound was inflicted at the time of death.

Tickle’s time is up and Mr. Katz gets up to argue the respondent position.

Katz starts off by offering to counter Mr. Tickle’s last argument about the bite mark.

"Page three of the respondent’s brief. ... The coroner identified the pattern injury was consistent with a bite mark. ... The coroner looked under the wound and saw hemorrhage but no inflammation." She testified the wound occurred on or about the time of death.

Katz brings up the DNA under the fingernails.

He mentions [Bradley? Brown? v. McDaniel] and then moves onto the merits of pretrial delay and that the federal rules apply.  He argues the federal standard regarding the delay. 

I’m totally lost because up until this point, I’ve only had a copy of the appellant’s brief. I’ve not seen the respondent’s reply brief yet.



Lazarus’ brother Steven arrives.

Justice Willhite brings up the issue that the state standard was not statute, but legislation passed by the voters, to essentially over rule a series of [?] by the Superior Court ...

I become further lost in the legal complexities as the justices and Katz cite prior case law rulings.

The issue Katz and the justices are going back and forth on is the federal law verses the state Prop 8, and which applies. The justices do say that, at the end of the day, does it make a difference in this case? [Basically not really because where's the prejudice.]

Justice Manalla adds, “There is modest prejudice at best ... not just for delay. .. They [police] don’t have to test every case as soon as they get it.”

Katz is finished. The justices tell Tickle that even though he went over on his allotted time, they will allow him five minutes for rebuttal.

Tickle goes back to arguing the pre-accusation delay again.  He also mentions that there is equally substantive evidence of DNA of others that engaged in a violent struggle.  He backs of off the bit mark. Tickle is back to the burglary theory.

And that’s it. Arguments are over. We get up and make our way outside. 


I believe Mr. Katz greeted Nels and Loretta after the oral arguments.

Outside the courtroom on the third floor catwalk, DDA Nunez and Detective Stearns speak to the Rasmussen family, Jayne and Michael Goldberg, Matthew and myself. DDA Nunez tells the family that he did not hear anything that would cause him any alarm.

It appeared to me that the justices were leaning towards agreeing with the trial court decision.

Nunez tells Nels and Loretta that DDA Shannon Presby would have been here, however, he just finished a trial and obtained a conviction of an LAPD officer [Mary O'Callaghan], and he was taking a few days off.  Someone said that was good news. There is a short discussion of Presby's case. Detective Stearns responded, something to the effect of, the officer went a little bit overboard. This LA Times story gives the relevant details of what happened to Alesia Thomas.

Appeal: What Happens Next
We then talked about how long it will take for the justices to publish their opinion. It could be as quickly as a few weeks or it could take closer to 90 days.

If Lazarus’ appeal is denied, she could appeal to the California Supreme Court. However, that appeal isn’t paid for by the state. She would have to pay for that appeal herself. The other issue is, even if the appeal is submitted to the California Supreme Court, they are not obligated to review it. 

The California Supreme Court rejects cases all the time. I've been told that they don't review cases where the facts are similar to other cases they've already reviewed. Additionally, I've been told that appeals at that level can be political.

After the California Superior Court, Stephanie’s last recourse is a federal habeas corpus appeal. Those take a very long time; many years.

What About Parole
The next discussion was parole. Because the crime occurred in 1986, Lazarus serves her time under the sentencing laws in effect at that time. This means she gets good time credits for every day she served in county as well as in prison. Convicted murderers under today's sentencing guidelines must serve 85% of their sentence.

I remember right before the verdict, sources indicated to me that Lazarus' first opportunity at parole would be around 15 or 16 years after sentencing.

The next item discussed is what would happen when she is before the parole board. It would be a very rare thing indeed if Lazarus is granted parole the first time before the board. It's pretty much a given that won't happen. It's my personal opinion that she would probably have to serve at least the 27 years before the parole board would consider her for parole.

It's possible she would need to admit to the crime, however, that's not necessarily the case. There are instances of parole being granted without assuming responsibility. At this point, she is still pursuing an appeal. If she pursues an appeal to the California Supreme Court and then onto Federal Court, that might not be looked upon favorably by the parole board.

After all the questions are answered, everyone says their goodbyes and makes their way to the elevators. Looking over the catwalk as I start to head home, I see Lazarus’ family speaking to Mr. Tickle in the cafeteria.

I hope to have an audio file and transcript of the oral arguments uploaded soon.

Appellant Opening Brief
Respondent's Reply Brief
Appellant's Reply Brief