By Alana Bleimann
SAN FRANCISCO, CA – San Francisco County Superior Court Judge Rita F. Lin—noting “this is a short straightforward incident, short straightforward trial”—Thursday discussed pre-trial motions with Assistant Public Defender Leo Fissel and Deputy District Attorney Pearl Tan for the upcoming alleged domestic violence trial of Marche Hayes.
Later, the DDA made an offer of only probation and taking a class and Hayes said “we good” in declining the plea bargain.
The morning began with debate of whether or not the female victim would be present during the trial to testify against Hayes.
Tan plans for her to be present and for her to be the first witness, but the victim failed to show up Thursday morning in court even though subpoenaed. If the victim does appear, she will be testifying on Wednesday.
However, as a domestic violence survivor, she does not have to appear if she changes her mind, and DDA Tan noted, “DV victims often change their minds.
“She’s not here, we need to decide [if she will be testifying] before the jury sits,” PD Fissel replied.
Tan explained she wants San Francisco domestic violence expert Sgt. Antonio Flores to testify during the trial to describe to the jury how abusers manipulate and control their victims, and that the victim was in fact being manipulated by Hayes.
DDA Tan also made it clear that the victim blames herself for the incident and Tan wants Sgt. Flores to explain to the jury that this is common for domestic violence victims.
The victim feels as though she started the incident because, after she called Hayes derogatory and racist names, they began to fight and “Hayes chased her down the street.
“Sgt. Flores does not know about the facts of the case at all,” Tan explained to Judge Lin. But PD Fissel objected, noting, “I have no idea what he’s going to talk about… I can’t meaningfully cross-examine him.”
Judge Lin proceeded to describe how the victim and Hayes are trying to reconcile their relationship and the victim recently asked for the criminal protective order to be modified.
There was also much debate over the victim’s initial statement to police officers at the scene of the incident.
A full written report and oral testimony of this statement needs to be turned over to Tan, Judge Lin explained, “but right now that does not exist. It seems to me when [the victim] spoke to the officers there was no ongoing emergency.”
It was revealed that when the police officers arrived at the scene, they did not immediately handcuff Hayes, but rather waited for the victim to make a statement about what had happened.
DDA Tan argued that the incident was only diffused when the officers showed up, and the victim was bleeding heavily, crying, and talking quickly with the officers—all signs of distress and that she was harmed.
The big question became, is her initial statement testimonial?
“The fact that this incident occurred on the street and not in private quarters makes it different,” Tan claimed, and “this initial statement… is different than the other two statements.”
After much consideration, Judge Lin decided that the victim’s initial statement to officers will not be admitted during the trial.
PD Fissel proceeded to explain that the victim herself actually has “prior history of character violence” and he plans to bring this up during trial if self-defense is mentioned.
However, Judge Lin made it clear that any mention to the jury of incarceration’s effect on Hayes’ life will not be allowed.
Additionally, the lawyers should not use the term “victim” at any time during trial, “but witnesses can use whatever word they want,” Judge Lin said.
PD Fissel raised an argument to this, stating that officer witnesses should not be allowed to use the term “victim” because it assumes Hayes’ guilt. Additionally, an officer’s uniform alone gives their words more authority than a civilian witness.
But, despite these arguments, Judge Lin will continue to allow officers to use the term “victim” during the trial.
Judge Lin proceeded to discuss a 911 call that was made to police from an onlooker of the incident.
“My tentative ruling on this,” Judge Lin said, “I don’t think the call is testimonial” because, the judge explained, the caller doesn’t have an excited tone of voice during the call and is not in immediate danger.
From details spoken in the courtroom, it became clear that the caller was watching the incident and told the police on the phone that “the man is attacking the woman.”
DDA Tan argued that anyone seeing an attack will be under distress, thus validating the use of this 911 call.
“Yes, he called 911, but after his call doesn’t explain his actions at all,” PD Fissel stated.
After a short 15-minute break, Judge Lin ruled the 911 call can’t be admitted in trial, unless the caller testifies.
PD Fissel announced he will not be calling any witnesses during the trial, but only focusing on the cross-examinations of Tan’s witnesses.
The morning ended with DDA Tan making an offer to Hayes—plead guilty to one count of false imprisonment with one year of probation and a six-month domestic violence prevention course as well as a peaceful contact order with the victim.
“I’m straight, we good,” Hayes told Judge Lin and refused to accept the offer.
Jury selection will begin next Tuesday morning with the first day of trial starting Wednesday.
