By Ankita Joshi
SACRAMENTO, CA – Sacramento County Superior Court Dept. 9 started off with a claim by the Sacramento County Public Defender Office that the Probation Dept. has refused to turn over records to the defense as it has done for the prosecution.
A subpoena duces tecum (requesting documents) was granted to the prosecution, but was not granted to the defense even though “they were substantially the same,” argued Assistant Public Defender Stephen Hirsh.
Hirsh appealed to the court Wednesday for help. He appeared on behalf of Defendant Esmeralda Blanco, who is facing felony battery and assault likely to produce great bodily injury.
Hirsch requested “to reset the violation of probation hearing,” because he’s waiting for additional medical records. And he specifically mentioned issues with the Probation Department during the preparation of Blanco’s case.
Hirsch requested the court “issue an order to show cause on the Probation Department for not complying with my subpoena for my client’s probation records.”
Deputy District Attorney Nick Karp voiced an objection on the basis of notice that the Probation Department had not been served, but acknowledged that the issue was between PD Hirsh and the Probation Department, and not his office.
Judge Helena R. Gweon said she couldn’t help, and that the court only “issues order to show cause when somebody is in contempt of court” and, since she was not present for alleged contempt by the Probation Department, she had to rely on court notes from the initial court date.
She continued to outline what she had gathered from court notes, and voiced some of her confusion about why Hirsch was putting this request in now, instead of the date of Feb. 11, the date the records were subpoenaed.
Additionally, there was confusion about the supposed subpoena duces tecum filed by DDA Karp, as “the minute order does not show any records being received any time between Feb. 11 and now.”
Judge Gweon said she supported the defense request, but also stated, “I am not going to set an OSC, they have not been noticed, and there has been no contempt of court before me.”
However, Judge Gweon also noted with uncertainty that she wasn’t “sure why they would need a court signature, especially since it’s your client’s record and not anyone else’s record. So, maybe it’s something that is not specific to this case, but we need to figure out with the Probation Department.”
Hirsch then began to clarify some of the confusion, specifically dealing with Feb. 11,
the initial court date.
“I explained to the judge on Feb. 11 what the situation was, and the judge, like most judges at the initial noncompliant stage, was not going to issue an order to show cause that day. The recommendation was that I follow up with probation, which I did,” stated Hirsch.
He added the Probation Department “basically gave me a little bit of a run around by referring me to different people, and then ultimately said we’re not going to turn these over without a judicial signature.”
Hirsch contended that he was going to get the judicial signature requested by the Probation Department, until he learned that DDA Karp had also filed a subpoena duces tecum, but did not have to go through the same process he did.
And while DDA Karp had provided those records to Public Defender Hirsch, they were for a different date range, and thus useless.
“The issue is that his subpoena, also like mine, did not contain a judicial signature and it was no different in what it was asking for. And probation, the very next day, after receiving his subpoena, sent the records directly to him,” asserted Hirsch.
Judge Gweon interrupted at this time to clarify if the records request put in by DDA Karp was a subpoena or not…this was confirmed by DDA Karp to be a subpoena duces tecum similar to the one put in by Hirsch.
Regardless of this new information, Judge Gweon restated that the proper legal procedure should have been for Hirsch to make the request on Feb. 11.
In the ensuing deliberation, Hirsch argued that the Probation Department “simply ignored” the subpoena order given by him, and thus needed the judge to put in an order to show cause.
And while Judge Gweon agreed that the Probation Department should have responded, she was adamant in her statement that the Probation Department should have been present at court on Feb. 11.
The final recommendation given to Public Defender Hirsch was to start over and reissue a subpoena order to the Probation Department, because Judge Gweon could “not take this action today,” as it did not occur before her.
The proceedings ended with Hirsch agreeing to start over, but requesting additional time to put together all the materials that he needed for future proceedings.
As a result, the date for release of records was pushed back by two weeks to March 24, as was other court proceedings on the case.
Ankita Joshi is a second-year student at the University of San Francisco, pursuing a major in International Studies and a minor in Political Science. She is originally from Sacramento, CA.
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9
Support our work – to become a sustaining at $5 – $10- $25 per month hit the link:
