Billy Wolfington and Shannon Silva were in court on Thursday before Judge Janet Gaard, as their attorneys asked for a four to six week continuance due to what they said was new discovery.
Two suspects were attempting to flee the scene and hide in nearby bushes when they were located by responding officers. The suspects were identified as Billy Wolfington, a 28-year-old white male from West Sacramento, and Shannon Silva, a 30-year-old white male from West Sacramento. Both suspects were on California Department of Corrections parole.
Deputy District Attorney Ryan Couzens opposed the continuance, stating that he had provided all discovery at arraignment and the new material was only a different form from what he had previously turned over to defense attorneys.
He proceeded to argue case law against the need for the continuance. He stated that since they are relying on street people as material witnesses, they cannot afford a continuance lest they lose the opportunity to put these individuals on the record. He stated that he has a concern that they would disappear at some point, and he at least wanted to have their testimony on the record, that they could refer to in trial.
He argued if there is to be a continuance, it should be two rather than four to six weeks.
The defense attorneys Ron Johnson, a Deputy Public Defender representing Mr. Wolfington, and James Granucci, an appointed attorney for Mr. Silva, argued that this is a serious case in which there are potential special circumstances that could lead to the death penalty being sought.
Mr. Granucci indicated that he just received 9 CDs and 200 pages of discovery, and he had not time to review them. He argued this was a serious case and his client had a Sixth Amendment right to adequate representation.
The defense also argued that they needed to be able to conduct their own investigation, as the incident just happened a little over two weeks ago. If Mr. Couzens is correct that the witnesses are going to disappear, then they said that is all the more reason to be sure they are prepared to ask the right questions in order to represent their clients.
Judge Gaard ruled that, given the gravity of the offense, there was good cause to make sure that Mr. Couzens’ representation of the discovery was accurate.
She set a hearing for October 6, bowing to the demands of Mr. Couzens. He told the Judge that the People object. He argued that the People have the right to a speedy trial, as well, and that he made the discovery available the date of the arraignment.
Mr. Johnson told the Judge that he has a trial in two weeks and will not be able to review the discovery in time to having a preliminary hearing on October 6.
Judge Gaard said that he is entitled to file a motion for continuance and she can determine at that hearing whether he has good cause.
Mr. Johnson objected and said he would not be ready until at least four to six weeks.
Mr. Couzens retorted, that no offense, but maybe Mr. Johnson shouldn’t be the defense attorney on this case.
The defense has long had problems with Judge Gaard, believing that she is too easily swayed by the prosecutor’s office. Mr. Granucci asked why this case was even in Department 8 (Judge Gaard’s department), and he said he thought Judge Richardson was supposed to be assigned to the case.
However, Judge Richardson was disqualified. For some reason, the defense did not follow suit by seeking to disqualify Judge Gaard.
The determination as to whether this will be charged as a death penalty case apparently does not need to occur prior to the preliminary hearing. At the point at which that determination is made, the defense would be appointed a second defense attorney for each defendant.
The issue of special circumstances was raised but not discussed.
The Vanguard noted two weeks ago that Mr. Wolfington was a central figure in the first West Sacramento Gang Injunction, as well as a defendant in the second one, in which Judge White ordered the injunction imposed earlier this year.
Mr. Wolfington was part of District Attorney (at the time just a Deputy) Jeff Reisig’s plan to get the original gang injunction imposed with a minimal fight – a strategy that would backfire.
The district attorney in that first gang injunction only served one person, Billy Wolfington, who at the time was an alleged Broderick Boy who didn’t even live in West Sacramento.
No other gang members mentioned in the case were personally served with notice of the district attorney’s complaint against the Broderick Boys. Thus, they were not given notice that an injunction was pending, and therefore they were given no opportunity to appear in court on their own behalf to fight against the accusations.
The Gang Injunction was thrown out at that time on the grounds that the alleged gang members were improperly noticed.
In the appellate court ruling on April 23, 2007, the court held, “The district attorney served only Billy Wolfington, a single gang member of unknown rank, trusting that he would spread the word.”
The court added, ”However, when he was served, Wolfington immediately said he would not appear in the proceeding, i.e., he would not oppose the People’s request for an injunction against The Broderick Boys.”
Thus they ruled, “Under these circumstances, even if service on Wolfington complied with state law regarding service of process, the service on him alone was not reasonably calculated to apprise the gang and its other members of the pending action.”
Later they indicated, “The declarations show that Billy Wolfington is a member of the Broderick Boys, but say nothing about his rank.”
—David M. Greenwald reporting
[quote]However, Judge Richardson was disqualified. For some reason, the defense did not follow suit by seeking to disqualify Judge Gaard.[/quote]
On what grounds was Judge Richardson disqualified, if you know? On what grounds would you suggest the defense argue that Judge Gaard be disqualified?
Code of Civil Procedure Section 170.6
[quote]She set a hearing for October 6, bowing to the demands of Mr. Couzens.[/quote]
Mr Couzens argued for no continuation. Granucci argued for a continuation. A continuation was granted. I don’t see any bowing but I don’t have an agenda.
I guess I didn’t explain well enough that she first said six weeks, then after Couzens whined for five minutes made it two weeks even though Johnson made it clear he (A) had a trial and (B) had to prepare for that trial rather than read the discovery.
[i][quote]”Code of Civil Procedure Section 170.6″[/quote][/i]And, for the benefit of our non-attorney readers….
You may recall this July article: here ([url]https://davisvanguard.org/index.php?option=com_content&view=article&id=4562:das-office-abuses-process-to-intimidate-judge&catid=74:judicial-watch&Itemid=100[/url])
170.6 says:
“(a) (1) A judge, court commissioner, or referee of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or
proceeding.”
“A party to, or an attorney appearing in, an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee.”
Based simply on the filing of the motion, the judge is disqualified and it moves to another judge.
[quote]The district attorney in that first gang injunction only served one person, Billy Wolfington, who at the time was an alleged Broderick Boy who didn’t even live in West Sacramento.[/quote]
[quote]No [b][u]other[/u]gang members[/b] mentioned in the case were personally served with notice of the district attorney’s complaint against the Broderick Boys. [/quote]
[quote]on April 23, 2007, the court held, “The district attorney served only Billy Wolfington, a single [b]gang member[/b] of unknown rank, [/quote]
[quote]Based simply on the filing of the motion, the judge is disqualified and it moves to another judge.[/quote]
That explains Judge Richardson, but how would you argue Judge Gaard be disqualified? If I remember rightly, and I just don’t have time to do my research today, you only get one free bite at the apple…
Each side gets one. So the idea would be the DA would have disqualified Judge Richardson and the PD disqualified Gaard, but they didn’t.
I have to admit the DA makes a good point on this as far as the time constraint. When your only witnessess are homeless and roam daily with no permanent address, it does risk two killers walking away scott-free. I dont see exactly how the death penalty plays into all of this but it will be interesting to see what all of the charges and enhancements will be. I am surprised that the defense has not requested a change in venue given the history with the gang injunction and how Wilmington was singled out in all of that.
[quote]Each side gets one. So the idea would be the DA would have disqualified Judge Richardson and the PD disqualified Gaard, but they didn’t.[/quote]
Boy, I really am getting punchy from lack of sleep. I get your point now – it took me long enough!
[quote]I have to admit the DA makes a good point on this as far as the time constraint. When your only witnessess are homeless and roam daily with no permanent address, it does risk two killers walking away scott-free.[/quote]
Excellent point…
A good point but the problem is that the DA has also just dumped 200 pages of documents and 9 cds on the defense and it takes time to evaluate, otherwise they don’t have an opportunity to adequately cross-examine the witnesses who could potentially then be lost forever.
At the risk of being a “lexicon artist”, I believe the expression is “scot free”… as in a Scottish person who got a ‘out of jail free’ card…
[i][quote]”Deputy District Attorney Ryan Couzens opposed the continuance, stating that he had provided all discovery at arraignment and the new material was only a different form from what he had previously turned over to defense attorneys.”
“I guess I didn’t explain well enough that she first said six weeks, then after Couzens whined for five minutes made it two weeks even though Johnson made it clear he (A) had a trial and (B) had to prepare for that trial rather than read the discovery.”
“…the DA has also just dumped 200 pages of documents and 9 cds on the defense and it takes time to evaluate, otherwise they don’t have an opportunity to adequately cross-examine the witnesses who could potentially then be lost forever.”[/quote][/i]Sounds like both sides better get busy interviewing witnesses. Assuming Couzens is truthful about all discovery already being provided at arraignment, why wouldn’t the defense concentrate on what it already knows. If it turns out the DA has misrepresented, there’ll be remedies down the road.
After all, they’re preparing for a preliminary hearing rather than the trial. It seems as though an over-scheduled public defender would want to get to the next step so the defense could add to its numbers.
Just Saying: also the arraignment I think was September 9 and the hearing was the 22nd, so they had less than two weeks to prepare, their own investigator was not even done – and this is potentially a capital murder case.
hpierce – your lexicon bearing criticism is noted but not one word about me completely getting the last name of the defendent wrong?! I feel scot free!
[quote]At the risk of being a “lexicon artist”, I believe the expression is “scot free”… as in a Scottish person who got a ‘out of jail free’ card…[/quote]
What can I say… this has been a long, long week, juggling too many things all at once! Just finished up officiating at a wedding yesterday, including setting up/clean up, assisting bride. It was WONDERFUL!!! Very, very happy moment…
[quote]At the risk of being a “lexicon artist”, I believe the expression is “scot free”… as in a Scottish person who got a ‘out of jail free’ card…[/quote]
What can I say… this has been a long, long week, juggling too many things all at once! Just finished up officiating at a wedding yesterday, including setting up/clean up, assisting bride. It was WONDERFUL!!! Very, very happy moment…