On the surface it is a bizarre and insignificant part of a much larger case, the bulk of which has long since been decided. The defendant is accused of making threatening gestures that no one other than a police officer and a sheriff’s deputy saw in a room full of people, and the video of it is “confusing” and “ambiguous” at best.
The action allegedly occurred in open court, in plain view of the judge, court reporter, and deputy district attorney, and yet all of them have now successfully quashed subpoenas on the basis that they didn’t see anything – even though the defense argues that the reason they didn’t see anything is that nothing occurred to be seen.
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.”
The incident, if you want to call it that, was captured on court video. But every neutral observer has reached just about the same conclusion – Mr. Lovett is clearly moving his hands, but no one can say that those gestures are actually intentional threats to the witness.
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.”
Judge Dan Maguire became the latest to make a judgment on the video. He repeatedly noted that there was really nothing to see, he stated that what the video shows is “subject to interpretation,” and acknowledged that the first time he watched it, he missed the hand gestures.
In short, the incident itself seems much ado about nothing. The prosecutor has caused quite a commotion and disruption to add the charge of dissuading a witness, in an incident that everyone argues is ambiguous when viewed in the best possible light. Keep in mind, the main charge here is that Mr. Lovett was an accessory to an attempted murder. The shooter in that case, Michael Reyes, was found guilty last July and received a sentence of 68 years to life.
And yet, as much as the judges acknowledge there is really little to see even on the video, they do not appear to have the ability to end this saga. Judge Rosenberg held the defendant to answer on what he acknowledged to be an ambiguous situation. Judge Paul Richardson bowed out of testifying by claiming judicial privilege and that he saw nothing and Judge Dan Maguire has granted motions to quash subpoenas of percipient witnesses on the basis that they did not see anything – even though the defense is that the reason they didn’t see anything is that nothing occurred.
However, perhaps the strangest of the machinations was the fact that one of the percipient witnesses was the wife of Yolo County District Attorney Jeff Reisig.
Judge Maguire, in ruling to support the motion to quash the subpoena, noted that, as a court reporter, Abby Waller-Reisig, unlike Judge Richardson, did not have an automatic claim to immunity to a subpoena. He granted the motion on the basis of her claim that she had nothing pertinent to offer in testimony.
Back in February, Deputy Public Defender Martha Sequeira moved to recuse the office of the Yolo County District Attorney, arguing that “both the former prosecutor (Amanda Zambor) and the wife of the chief district attorney (Abby Waller-Reisig) are witnesses to the alleged conduct of the accused. Thus there is a conflict of interest and it is unlikely the accused will receive fair treatment.”
She cited legal authority that notes, “Historically, courts have recognized their power to recuse in order both to assure fairness to the accused and to sustain public confidence in the integrity and impartiality of the criminal justice system.”
In fact, a 1996 case noted, “Our Supreme Court held that a conflict exists at a relatively low threshold whenever the circumstances of a case evidence a reasonable possibility that the District Attorney’s office may not exercise its discretionary function in an evenhanded manner.”
Ms. Sequeira wrote, “We are confronted with both the former prosecutor of this case now acting as a witness and the wife of the Chief District Attorney acting as a witness.”
She added, “Further, as evidenced by the course of conduct of the prosecution team thus far, for example, the clear lack of an ethical barrier and instead the imaginable discussions and free exchange of information within the walls of the District Attorney’s Office, the former prosecutor stating one version of the events, these statements later being skewed, and the involvement of other District Attorneys not otherwise affiliated with the case or familiar with its facts, give rise to the reasonable possibility of a conflict of interest and undermine confidence in the integrity of the proceedings.”
The lack of clear barrier is of paramount importance in this case. On Thursday, during the hearing on the motion to quash the subpoena, the line between the DA’s office and private counsel became very blurry.
Ms. Reisig had obtained private counsel in the form of Marcus Wiggins. However, during the hearing, the DA’s office sent in Deputy DA Ryan Couzens, even though they were not a party to the dispute.
When Mr. Couzens arrived, Mr. Wiggins immediately went outside the courtroom to confer. Mr. Couzens would repeatedly insert himself into the dispute over the objections of the defense. At one point, after Ms. Sequeira raised the issue of the layout, Mr. Couzens argued that this was the first time the issue had come up.
At the end of the proceedings, Mr. Couzens put on the record case law that he had clearly spent time to research.
What became very clear then is that the DA’s office used staff time to do legal research on behalf of the DA’s wife in order to prevent her from having to testify for the defense.
There is a clear line that has not only been blurred here, but obliterated. The job of the DA’s office is to prosecute criminal defendants, not offer their legal services to help potential defense witnesses quash subpoenas. (Remember, the DA was not a party to the motion to quash).
It was clear from the interaction that there was collusion between Mr. Couzens and therefore the Yolo County DA’s office, and Ms. Reisig, the wife of the District Attorney, and her counsel.
How that does not represent a legal conflict of interest is unclear.
This is not a theoretical witness or someone being asked to weigh in with expertise. This is a direct witness, and the alleged conduct occurred a few feet away.
Imagine a different scenario where a gang member during a gang fight tried to pull the same stunt, arguing, “I didn’t see anything even though it supposedly happened a few feet away from me!” Is there even a one chance in a million that they could avoid a subpoena to testify? Not a prayer.
How does Mr. Lovett get a fair trial on this issue if he is not allowed to call witnesses? How can the DA’s office act as prosecutor, witness, and now gatekeeper? And how can the Yolo County judges make any claim that they are fair and impartial when they refuse to force people who were in the room and a few feet away from the alleged incident testify that they didn’t see anything?
Clearly, someone else has to step up here because Yolo County does not appear capable of allowing this man to have a fair trial.
—David M. Greenwald reporting
Formally convey the concerns expressed in this column to both the Yolo County Grand Jury and the State Attorney. Nothing prevents anybody from doing this. So do it. Anybody, everybody, go for it.
If a newspaper column had the same critique, would that be your response to them as well? It seems like the Vanguard’s obligation is to provide news and commentary to the community, not act as a mechanism to lodge formal complaints.
“If a newspaper column had the same critique, would that be your response to them as well?”
Probably somebody would, that’s pretty certain. Your peculiar retort poses another issue: Not one area newspaper, television news station, county grand jury or the State Attorney’s Office has made a single public allegation or declaration matching the unsubstantiated claim that the Yolo County DA and judiciary are complicit in trampling the rights of individual citizens.
How is it that every other county and state watchdog, and media source, is either indifferent or ignorant to these alleged abuses?
Phil
http://www.dailydemocrat.com/news/ci_13192378
https://www.indybay….
https://www.newsreview.com/sacramento/content?oid…
http://www.mercedsunstar.com/news/state/article3275812.html
It would appear from this very small sampling of a 5 minute Google search that not every other watchdog or media source has been indifferent or ignorant of these alleged abuses. I think it is quite likely that more abuses might be brought to light if citizens such as myself were better informed of mechanisms to bring our concerns to light.
With that in mind, what would you suggest as the most appropriate way to express one’s concerns in view of the post of dsomeyareed ?
Phil
I am certainly to the point where I think that this particular case warrants examination. So an honest question. What does your average private citizen do to call this to say the attention of the AG ? Is a letter of concern sufficient, or would it likely be ignored or even just lost in the flood of communications ? Is there a form that can be submitted ? How does one approach this issue ?
“What does your average private citizen do to call this to say the attention of the AG ? Is a letter of concern sufficient, or would it likely be ignored or even just lost in the flood of communications ? Is there a form that can be submitted ? How does one approach this issue ?”
Well, Ms. Will, I can give you honest answers to your honest questions based upon my first hand experiences with the CA Office of the Attorney General (OAG).
First a (difficult to keep, but hopefully) short background on my issue(s).
My dying, quadriplegic wife was horrifically mistreated (that word is really not strong enough) and illegal & unconscionable actions were taken against her by staff of a service under direct orders from their management. She died. I fully researched the actions against legal code and presented same to our local DA’s office as the complaint process instructs be done in matters such as this. The deputy DA with whom I spoke agreed with my findings and legal citations of both felony & misdemeanor actions. He asked to review it for 2 weeks (and with the DA) then respond. 2 weeks later, he did respond by telling me that the DA’s decision was that I offered “no proof that she suffered or suffered enough for us to get involved.” He added, “All the rest you have are misdemeanors.” I researched that response which made no sense to me. Especially, since all I wanted to do was prevent others from being similarly victimized by such abuse. My wife was dead. Nothing could (or can) ever change things for her. I found (and CA attorneys confirmed) that I had absolutely no legal duty to prove suffering in this matter. They said if that were the case it was unlikely that any case could ever be won and some even recommended that whatever attorney had said this to me should be dis-barred.
I contacted the CA Attorney General’s Office (OAG) as instructed if one is dissatisfied with a local DA’s actions (or lack of in this case). I was told I could either leave a voice message or fill out a form that would go to the AG’s Public Inquiry Unit (PIU). However, I was advised I should not get my hopes up because neither the PIU or the AG get involved in individual cases. I explained I was identifying a much larger, statewide and even national issue that I thought the AG would want to know about. I was informed that the AG “does not speak to members of the public.”
The OAG website used to have (I don’t see it anymore) a place where you could email in your concern. The heading for this contained verbiage that the AG “is interested in what you have to say.” In reality, I was told, these emails, just like any submission, go to the PIU and nowhere else.
So, I guess the Attorney General is interested in what we have to say, she just doesn’t want to hear it from us. She is largely no different than the prosecutors who report to her throughout the state. They all have their favorite kinds of cases to take on and engage “prosecutorial discretion” to eliminate dealing with those they don’t. Those cases eliminated we are told are either unwinnable or too hard to win. What I got was the “You should just get over it and move on” speech.
Does this answer your concern?
“Imagine a different scenario where a gang member during a gang fight tried to pull the same stunt, arguing, “I didn’t see anything even though it supposedly happened a few feet away from me!” Is there even a one chance in a million that they could avoid a subpoena to testify? Not a prayer.”
I would put this another way, if this were any other court reporter other than Reisig’s wife – would the DA’s office be involved and would the Judge have agreed to quash the subpoena? That’s the heart of the matter.
It is because officers on the street see things, and attorneys can’t recognize what they are seeing.
Kids today are always gesturing and making little hand signs all over town. Little kids are picking up gang signs when they are too young to know what it means. High school kids make funny “W”s in Woodland, but prison gangs have the same sign. I would err on the side of the officers, when “we” don’t see nothin.
dsomeyareed
“Does this answer your concern?”
I thank you for taking the time to share your experience and am sorry to hear of your loss and your bad experience with our legal system. If it is the case that the AGs office does not deal with individual cases brought be members of the public, that would seem to make it ineffective for an individual such as myself to forward a concern to the PIU.
David, or any of our lawyer or law enforcement types, any experience with this ?
There is a reason why prosecutor’s engaging in misconduct has become a huge issue nationally and part of it is there is no legitimate mechanism to hold them accountable. The AG’s office is unlikely to be responsive to an individual complaint. The Civil Grand Jury is more likely to respond, less likely to be able to accomplish anything.
Mr. Greenwald’s comments are absolutely correct. I went the Grand Jury route and got nowhere.
Before someone else brings going to politicians into the mix, I have testified numerous times before relevant bodies and committees of the CA State Legislature, including testimony of my attempts to enlist the county and state prosecutors (even once in a State Capitol room filled with DA’s testifying on a similar matter also not being addressed), only to be told as to mine, “Don’t worry, it will get better.” Really? How? When? How about for those who died?
I learned that it is considered “political suicide” for a politician in CA to openly address my issues and seek to change the law(s) in a manner more favorable to those who are most likely to be harmed by them.
I sought out the aid of my own district’s State Assembly Member, also, and as you are told to do if the DA, the AG and the Grand Jury won’t either listen or take any action or both. After a very long time and many requests during speaking engagements, she granted me some time with one of her legislative consultants to craft a bill which the consultant told me would be “mine” if this Assembly Member chose not to introduce it. Should it not be supported, I would be free to take it to anyone else. She never asked me to meet with her and get any details even though this area has always been part of her platform and was directly related to committees upon which she sat as chair. Then, one day without warning, the consultant would no longer take my calls and all work was, apparently, ended.
I did submit a request for an audience with former Governor Arnold Schwarzenegger towards the end of his term. Didn’t happen. So, I simply resubmitted for current Governor Jerry Brown but I’m still waiting.
So, I don’t see how anyone can dispute Mr. Greenwald’s comment that “there is no legitimate mechanism to hold them accountable.” At least, there’s not within the State of CA.
I have gone Federal, starting with Eric Holder, but now he’s gone. AG Loretta Lynch is now up to the plate. I, understandably, have low expectations but I’m nothing if not persistent.
Miwok
“I would err on the side of the officers, when “we” don’t see nothin.”
I would probably agree with you if the action being discussed were some esoteric sign likely to be known only to gang members and members of police gang units. But in this case we are talking about a sign that is universally recognized in our society. I cannot think of a clearer sign of threat than a finger drawn across the throat, which all but the youngest child would recognize. I think that it is highly relevant what other individuals present in line of view of the individual charged did and did not see especially since the officers can hardly be considered to be neutral parties within our adversarial system whereas the judge and court reporter certainly should be.
That’s the problem – siding with the officers presumes they are neutral parties who in an unbiased way in part their expertise. There’s another piece to this, Martha Sequeira, the public defender, caught Officer Herrera in some of his testimony. Future article on that, so he’s not even a credible source here.
“That’s the heart of the matter.”
Another way to look at this might be, what if it were a son of the Reisigs who was being charged on such doubtful evidence with intimidation of a witness. Would they then be arguing to not have direct witnesses whose statements imply that they did not witness such activity testify ?
The heart of the matter for me is equal representation and application of our laws. Regardless of what one sees as the most appropriate analogy, it certainly does not seem to me that these principles are being applied in Yolo County.
Tia: I think this is why you don’t want people with vested interests making these kinds of decisions. This case should have been turned over to the AG to prosecute once decisions like a Judge, DA, and DA’s wife testifying arose. Maguire seems like a good guy, but is he really going to raise the wrath of the DA by putting his wife on the stand?
Maguire is clearly not a good guy, Q.E.D.
Unbelievable! The DA’s wife is a court reporter in his criminal cases?
To “skeptical” – you are absolutely right. Several judges hide behind “judicial immunity”, thinking they are untouchable when they violate their judicial code of ethics. However, it does not shield them when they fail to disclose they have a conflict of interest in a case and an exchange of money is involved. A rabbi said if one is to seek justice, shame the guilty party, even if it is a judge. That is what it will take to clean house in Yolo County Superior Court.