Deputy Public Defender Martha Sequeira is 0 for 3 in terms of getting courtroom personnel to testify to what took place at a preliminary hearing on February 19, 2015, when defendant Eric Lovett allegedly made threatening gestures directed at complaining witness Ernie Sotelo while Mr. Sotelo was testifying at the preliminary hearing.
Previously, motions to call Judge Paul Richardson and Deputy DA Amanda Zambor were quashed. On Thursday, Judge Dan Maguire ruled in favor of a motion to quash the subpoena presented in effort to call court reporter Abby Waller-Reisig to testify to what she may have seen that day.
Ms. Reisig happens to be the wife of Yolo County District Attorney Jeff Reisig.
Judge Dan Maguire is now presiding over the trial of Eric Lovett, accused of, among other things, being an accessory to an attempted murder in West Sacramento and gang crimes, along with a charge of dissuading a witness stemming from the 2015 preliminary hearing.
Judge Maguire, in his ruling on Thursday, noted that, in general, parties have the right to call witnesses in order to make their case and that, given that there is no claim that Ms. Reisig is privileged or immune from being called as a percipient witness, the only consideration is if her testimony would or would not be relevant to the matter at hand.
Judge Maguire noted in his ruling that the existence of video is critical, and without the video he would certainly have denied the motion, but given that the video was of reasonable quality, and showed movements on the part of the defendant, he had to consider whether Ms. Reisig had anything in addition to offer the defense.
The judge himself noted that what the video shows is “subject to interpretation,” which was a carefully constructed comment, given that he acknowledged that the first time he watched the video, he didn’t see anything.
Judge Maguire is not the first neutral observer to be less than overwhelmed by the content of the video.
Rod Beede, a counsel for a co-defendant, at a trial setting conference in July 2015 said that it “would be hotly contested what, if anything, Mr. Lovett did when the witnesses (sic) was on the stand. My entire staff and I looked at the tape two or three times and it was confusing at best.”
Judge Rosenberg was similarly equivocal on the content of the video.
“I saw Mr. Lovett make certain movements with his hand, which frankly surprised the Court, took me aback,” the judge stated.
He held Mr. Lovett to answer to the charges on December 14, 2015, but reasoned that a jury “could readily determine that Mr. Lovett was just fidgeting, but I also believe that a jury could determine that he was making motions like a slashing of a neck to intimidate a witness that was on the stand.”
In her declaration, Abbey Reisig stated that she had no testimony to offer as to what took place on February 19, 2015.
Deputy Public Defender Martha Sequeira argued that one thing Ms. Reisig could testify to was to the court layout. Ms. Sequeira argued that Deputy Gary Galvan had testified to the wrong layout of the court and that Ms. Reisig could offer impeachment testimony, as one cannot see the layout of the court in the video. She also argued she could testify to the demeanor of the defendant prior to the testimony.
Marcus Wiggins, the private counsel representing Ms. Reisig, who was not present, argued that his client has nothing to add and does not have knowledge of that day.
Deputy DA Ryan Couzens, whose office at least ostensibly was not a party to the motion, interjected over the objections of defense counsel, arguing that the layout issue was just coming out now.
Judge Maguire ruled that Ms. Reisig, according to her declarations, had nothing to offer as to what happened, as she claimed not to have seen anything.
He offered the “dog that didn’t bark evidence” because she (Ms. Reisig) doesn’t remember seeing anything that is potentially probative. He said that that can be evidence, but he has no reason to think that the dog wouldn’t bark. He said the absence of the evidence isn’t relevant, stating there was nothing to take notice of.
While Judge Maguire did grant the motion to quash the subpoena, he directed Mr. Wiggins to ask Ms. Reisig whether she had memory of the layout of the court and asked for that answer to be submitted to the court in a supplemental declaration.
Ms. Sequeira argued that she can testify to the mood of the court, noting that, while the deputy noted a change in mood of Mr. Lovett when the witness walked into the room, Ms. Sequeira argued that the mood often shifts from lighthearted to serious as soon as the judge walks ins.
Mr. Wiggins argued that this was straying from Ms. Reisig’s field of expertise.
Mr. Couzens then attempted to put onto the record case law that he argued would preclude this matter from being used, should the ruling get appealed. Judge Maguire said it was premature for such considerations.
At issue here is the added charge of dissuading a witness, stemming from allegedly observed conduct at the 2015 preliminary hearing.
On the second day of the preliminary hearing, February 19, 2015, the complaining witness, Ernie Sotelo, testified for the prosecution. The next day of the preliminary hearing, March 3, 2014, Officer Anthony Herrera testified that on February 19, 2015, he had witnessed Mr. Lovett make gestures toward Ernie Sotelo as Mr. Sotelo testified, and the officer interpreted the gestures as threatening.
Officer Herrera claimed he saw Mr. Lovett “do it over and over again.” He also testified that Deputy Galvan told him that he, Dep. Galvan, saw Mr. Lovett “do it several times,” “the same thing, the same motion with the finger.”
Deputy Galvan reportedly saw Mr. Lovett make this motion “five or six more times, doing it very slow.”
Officer Herrera said, “[Dep. Galvan] said at first before Ernie Sotelo came in to testify that [Lovett] was jovial, laughing and joking, but as soon as Ernie Sotelo came up here to testify, he said that that’s when he said he paid particular attention, said that he was – looked to be very interested in looking at Sotelo, and would like grit his jaw to where you could like see the muscles clenching in his face. He said he wasn’t joking and jovial up to that point, after that point, excuse me, when he was testifying.”
At a trial readiness conference, Ms. Sequeira writes, when specifically asked whether the court saw Mr. Lovett threaten anyone, Judge Paul Richardson stated, “I did not witness anything that would come up.”
Following the subpoena for the judge, the prosecution dismissed the case against Mr. Lovett and then re-filed a new complaint on July 13, 2015, in which the main charges were re-instated and a charge of dissuading a witness was included based on the alleged conduct on February 19 in open court. That case was assigned to go before Judge Rosenberg rather than Judge Richardson.
In December, Deputy Galvan testified that, while Mr. Lovett was “in a good mood, looked like he was happy,” his demeanor changed when Mr. Sotelo entered the courtroom to testify. He said he had a “straight face on him” and started “staring in the direction of Mr. Sotelo.”
Galvan claimed he observed that the “right side of [Mr. Lovett’s] face started tensing up in the temple area and the jaw area” after Mr. Sotelo began to testify. He witnessed Mr. Lovett’s “right hand go up to the side of his neck” and “observed his fingers pointing toward his neck area, and at that time I noticed his hand moving back and forth in a slow manner approximately five to six times.”
Galvan testified that he retrieved a court surveillance video, viewed it, and even though the camera captured Mr. Lovett at different angle, Galvan testified that the video substantiated his in-person observations
The jury selection was completed for Mr. Lovett’s trial and opening arguments will begin on Tuesday, March 15.
—David M. Greenwald reporting
I am really confused by these events. We have an officer saying he saw what he interpreted as threatening gestures, a tape which does not appear to support that assertion being at best “confusing” and a judge who said that he did not observe anything “that would come up” but won’t testify to that. Now we have another potential witness who states that she “did not see anything” and is not going to be called upon to testify ! Since when is the observation of a lack of threatening gestures not relevant when the charge is based on the subjective interpretation of gestures by an officer ? Any ideas ?
You don’t appear to be confused at all
Tia – You nail it. There was nothing to see, but somehow having a witness who saw nothing wasn’t probative. Plus, you have the whole Reisig improperly using DA resources to keep his wife from testifying against his office in a criminal trial. That has to be at least borderline unethical.
She’s doing a great job of bringing reasonable doubt about what her client is accused of doing. Only the deputies seem to see the violation out of a whole room of witnesses and even the video seems inconclusive.
The comments by the judges are admissible so there is likely no way that he will get convicted of this. The DA obviously wants to dissuading charges to bolster the gang case, but if it ends up weakening their overall case by looking like they are overreaching it may end up backfiring.
Still the misuse of a public office is the most serious problem here.
Now that you have twice alleged public funds were used to retain Ms. Reisig’s private counsel, where in the story is that stated? If you determined this to be factual from another source, could you give further evidence of ethical impropriety?