The Vanguard Court Watch has been in Judge Stephen Mock’s courtroom many times since 2010. Our view of him is that he is a relatively fair judge, though he tends to lean towards the prosecution, and he has a firm grasp of the law.
We firmly believe that most people who go before Judge Mock get a reasonably fair trial. There are exceptions, of course, but by far the most egregious was the Michael Artz trial.
It was clear from the start that Judge Mock allowed defense attorney Kathryn Druliner to get under his skin. We saw it when the judge lost his cool multiple times during the trial, including in front of the jury where he had to apologize.
He refused to recuse himself from the trial at multiple points, arguing that he could be objective. But the record is clear that he was not objective and he made uncharacteristic mistakes, many times.
We have seen Judge Mock in dozens of cases, and this is the only one in which we have witnessed him act in an unprofessional manner.
The result is that when the case went on appeal, there were many instances when the ruling of the judge and the charges by the DA’s office were not even backed by the Attorney General’s office, which essentially takes over the role of prosecutor for cases on appeal.
It is one thing for the DA’s office to be guilty of overreaching – as they did throughout the trial. It is another for the judge to make critical errors time and time again. It is still another that these errors should be so egregious that even the AG’s office does not wish to defend them.
That is precisely what happened in the case of Michael Artz. The vast majority of the points in the appeal were, in fact, not even contested by the AG’s office.
As we noted last week, the main charge that Mr. Artz faced was forced oral copulation. The jury acquitted him of this charge but convicted him on two lesser charges, including oral copulation with a person under 18 and contact and communication with a minor with the intent to have sexual relations. Ultimately, Mr. Artz was ordered to undergo counseling and spent six months in the Yolo County Jail.
The Vanguard covered this case more than a dozen times due to the lengthy sentencing hearing process and a controversy involving the DA’s press release that received regional attention, (key articles: August 30, 2010, August 31, 2010, June 11, 2011).
There are really three problems in this case, each of which could have been handled better by Judge Mock.
The first problem is the confusion over the conviction in Count 3, a violation of PC 288.3(a) which states that a person who contacts or communicates with a minor “with intent to commit an offense specified in Section . . . 261, . . . [or] 288a …”
As the appellate court notes, “The jury was instructed that defendant was guilty of violating section 288.3, subdivision (a), if the prosecution proved that defendant intended to commit rape or oral copulation.”
However, the court notes that “the jury was not instructed to specify whether it agreed defendant intended to commit rape or oral copulation, or both. “
The court rules, as the defense argues and the people concede, that the failure to specify which they believed to be the intent led to the violation of the defendant’s equal protection rights.
This was a much larger problem than one thinks. Based on this conviction, the DA sent out a press release that implied that the jury had convicted Mr. Artz of “sextortion.”
“According to Chief Deputy District Attorney Jonathan Raven, the incident began in August 2008, when Artz invited the girl to a ‘party’ at his house. When she arrived at his house, no one else was at this ‘party,’ according to Raven. “Artz made the 16-year-old girl orally copulate him and he took photographs and video during the incident. Nine months later, around May 18, 2009, Artz initiated contact with the girl through Facebook, a social networking website.”
The problem is that Mr. Artz was acquitted by the jury in at least part of that claim, specifically that he “made” her do anything, which implies he forced the victim to orally copulate him. That claim was captured in the acquittal. The jury, in this case, simply did not believe the victim’s account.
But it seems that neither the DA nor the judge were very accepting of the jury’s verdict and they seemed to have a desire to punish him, despite the acquittal on the main charge.
In so doing, they simply appeared to assume that the conviction on the third charge represented the jury’s view that he was attempting to contact the victim in order to force her to have sex. The problem is that they assumed that the jury agreed with their view without the jury ever having stated it.
The critical question then is whether the conviction on Count 3 is based on contact for the purposes of committing rape or having consensual sex (to the extent one can with a 16-year-old).
As the appellate court here notes, “In this case, it is impossible to tell whether the jury convicted defendant on count 3 because it found he contacted the victim with the intent to commit rape or with the intent to engage in oral copulation.”
The court adds, “The jury was not instructed to specify defendant’s intent in committing the crime, and it did not do so. Because it is unclear which theory the jury used to convict defendant, we must reverse.”
They add, “In a case such as this we cannot affirm the conviction unless we conclude beyond a reasonable doubt that the jury based its verdict on a legally valid theory.”
This is on Judge Mock, who not only failed to clarify the legal theory from the jury, but then during sentencing assumed that they had convicted him of communicating with the intent to commit a forced oral copulation.
We actually have some comments from the jury that indicates that it was not the case. These comments indicate that they convicted on Count 3 simply because it was clear he had contacted the minor nine months later in an effort to have sex with her again.
The second clear error by Judge Mock is with respect to the second count. This is also conceded by the Attorney General’s office and that is that while the defendant clearly had sexual contact with a minor in violation of PC 288(b)(1), his conviction was treated as a felony when in fact, “non-forcible sexual intercourse with a minor in violation of section 261.5 where, as here, the perpetrator is no more than three years older than the minor is a misdemeanor.”
Once Mr. Artz was acquitted of the rape charge, this should have been reduced to a misdemeanor. Judge Mock failed to do this.
That leads us to the final problem here.
The court ultimately rules: “Count 3, the conviction for violating section 288.3, subdivision (a), of the Penal Code, is reversed and the mandatory registration requirement based on count 2 is stricken.”
The case is then remanded back to Judge Mock, who needs to determine whether Mr. Artz has to register as a sex offender under section 290.006 for a misdemeanor sex with a minor charge that occurred when he was just 18 and the victim was a 16-year-old classmate.
The law here is actually absurd. Section 290.006 reads: “Any person ordered by any court to register pursuant to the Act for any offense not included specifically in subdivision (c) of Section 290, shall so register, if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification.”
So in order for Mr. Artz, according to this law, not to be registered as a sex offender, the judge would have to rule that the offense was not “for purposes of sexual gratification.” Why else would one seek oral copulation if not for sexual gratification?
I have long been a critic of the registration requirements for sex offenses. It is one thing if you are talking about a rapist or child molester, but for offenses such as this? It seems overly prejudicial and detrimental to the ability for Mr. Artz to move on with his life.
This would seem to be a case that needs to be challenged again in court, as that provision would seem to violate various constitutional principles.
Added to that is the absurdity of remanding this case back to Judge Mock, who has been shown to exhibit not only prejudice but poor decision making, both in terms of his conduct and his rulings in this case. He refused to recuse himself numerous times and the result is that you have a conviction thrown out because of mistakes that even the AG’s office could not defend.
The DA’s office should not be let off the hook here, either. They continued to trumpet this case as a sextortion case, misrepresenting to the media its status, even as the jury acquitted Mr. Artz of the main charges. They seemed to use this case as justification for seeking grants, and they misrepresented the facts of this case.
This case is an ugly stain on the conduct of the prosecution and the judge. For Mr. Artz, who had to serve 270 days in custody and undergo rigorous therapy in addition to the public humiliation, it would be justice for him to walk away with a misdemeanor that could be expunged from his record at the conclusion of his probation.
Unfortunately, our convoluted legal system may preclude that possibility and Mr. Artz could very well face a lifelong sexual offender status, that would render him a second class citizen, for a misdemeanor crime he committed as an 18-year-old with a classmate less than two years his junior.
Despite all of the mistakes in this case made by the DA and Judge, Mr. Artz could still suffer a grave injustice due to the convoluted nature of the laws.
—David M. Greenwald reporting
[quote]Why else would one seek oral copulation if not for sexual gratification?
[/quote]
I can think of several other motivators:
1) As part of establishing dominance in a relationship.
2) For bragging rights ( any one want to dispute that young males sometimes “keep score”?
3) As leverage over the individual in the future as in the case of photographing the act
4) To cause emotional suffering if it is known that the partner does not desire this contact
Sexual acts can be very simple and all about the immediate physical gratification, they also can be quite complicated with multiple motivators.
I hope that this is not going to set a precedent of making high school students register as sex offenders when they have consensual sex with classmates that are two years younger (18 & 16 years).
I think that what we have created in our country is an unnecessary confusion that stems from our ambivalent cultural attitudes about sexuality. We have a profound interest in sex coupled with a sense of shame and embarrassment about our interest in sex. This combined with our failure to determine a single age at which one transitions from childhood to adulthood leads us to all kinds of legal and social complications which could be prevented.
Take for instance our different age based levels for assumption of rights and responsibilities.
In California we can drive at age 16. We can vote at age 18. We can drink alcohol at age 21. We have different age requirements for when we can enlist in the military, marry without our parents permission, exclude our parents from access to our medical records……Hardly a clear line in the sand for who is an adult, and who is not. Many cultures avoid this by having a distinct age of majority. On one side, you are a child with all the dependency and protection that applies, and on the other you are an adult, with all the rights and responsibility that that entails. This approach also has its downsides, but it certainly does have clarity going for it.
Now you add to the above confusion, our avoidance of the biological driving power of sex, pretending that our youth are not subject to this very fundamental drive once they reach puberty ( at whatever age that occurs for the individual) with the hormonal imperative frequently at odds with the socially acceptable behavioral norms. Now add our ongoing obstacles to responsible sexual behavior and you have a near perfect recipe for these kinds of experimental behaviors by physically mature, but emotionally very immature individuals. Unfortunately we have decided not to distinguish between immature and criminal behavior and the outcome for some will be adverse consequences that will remain with them for the rest of their lives.
My proposal would be that our society mature and that we start taking responsibility as a society for
our failure to deal with teen sexuality in a rational fashion instead of one driven by long outdated standards that actually encourage boys to seek out sexual encounters ( stud, macho, lady’s man) but
disparage women for the same activity ( slut, whore, tramp ). If we did not have such double standards,
would a boy still be able to try to essential black mail a girl into sexual activity with photos of a previous encounter ?
“I have long been a critic of the registration requirements for sex offenses. It is one thing if you are talking about a rapist or child molester, but for offenses such as this? It seems overly prejudicial and detrimental to the ability for Mr. Artz to move on with his life.”
Sometimes the D.A. uses the registry as a bargaining chip. They have a super weak case, but they harrass the accused’s family and they threaten his/her family or friends. They even threaten to have CPS go to the family or friend’s house to harrass the person’s children. After sufficiently stressing out the wrongfully accused, and usually after the wrongfully accused has spent his life savings on attorney fees, they offer a deal: register as a sex offender & we’ll reduce or remove some of our bogus charges against you. At this point, the wrongfully accused is so stressed out, he or she will do almost anything. They may register with strong suggestions that they will be on the “zip code only” registry. Then California does away with the “zip code only” status. Thereafter, the wrongfully accused is stuck, for the rest of his life, labeled as a sex offender. Does this sound fair, in America? Cash for convictions.
Hypothetical situation: Let’s use Mr. Sonne as an example. Let’s pretend he had a young child at home. Maybe he would have been so worried about going to prison for seven years for rape, and not seeing his young child for seven years, and the damage that would do to his young child. So maybe he could have been convinced to register as a sex offender, in exchange for reduced charges. If he had not taken his case to a jury, right now, Mr. Sonne would be a registered sex offender for the rest of his life. Does that seem fair, in America? This scenario does happen. The danger is, there are many questionably guilty/innocent people who are registered sex offenders. Very dangerous ones are treated the same way as the ones that are NO THREAT whatsoever. Cash for convictions.
JimmysDaughter
Thanks for a very clear presentation of how very damaging our lack of ability or more likely willingness to differentiate those who are truly dangerous from those who have made a youthful mistake is. To me there should be two aspects of our legal system. One should be protection of the community from those likely to cause future harm. The second should be redirection, education and help for those whose lack of maturity, appropriate parenting or addiction has landed them in some kind of legal difficulty. To me we have virtually ignored these two aspects of “justice” while focusing almost exclusively on a third aspect,
punishment which has been shown over and over again to be an extremely poor motivator for improved human behavior.
Dear Medwoman,
Look at the case of Philip Garrido. He should never have been released from prison. He was released, then he abducted Jaycee Dugard. He was extremely dangerous and he should NOT have been released and allowed to register as a sex offender. Now look at the other end of the spectrum. Someone is mentally ill & starts sending images of child porn to strangers. If the stranger goes to the police and turns in the porn, they are in possession of child porn & they face seven years in prison. If they delete the porn, they feel bad that they have not helped the police catch a sick predator. If the police decide to prosecute (cash for convictions, after all) the innocent person may plea bargain and register for life as a sex offender. Is that person really a threat to society? So probation officers are overworked. They waste time in the innocent person’s home, and they can’t spend time in Philip Garrido’s back yard. It is shameful.
Jimmysdaughter, when and where was a person charged with possession of child porn for reporting to the police after a stranger sent them child porn?
“If the stranger goes to the police and turns in the porn, they are in possession of child porn & they face seven years in prison. If they delete the porn, they feel bad that they have not helped the police catch a sick predator.”
There are lots of complications and inequities in our mish-mash of sex predator laws. But, neither one of these acts in response to receiving unsoliticated pornographic files violates the law. Even our “Cash for Convictions ” Yolo DA couldn’t pull this off.
JimmysDaughter
[quote]f the stranger goes to the police and turns in the porn, they are in possession of child porn & they face seven years in prison.[/quote]
Do you know of a case where this has actually happened. Or is this just a fear that someone might have that might influence their behavior?
I do know of cases where women are reluctant to turn in a perpetrator of child abuse because they fear that having left their child with an individual who they trusted who subsequently abused the child, they are afraid that reporting will subject them to CPS scrutiny with the possibility of their child being taken from the home. This is a very real fear for women who work sometimes multiple jobs and still cannot afford reliable day care. So I can conceive of such a fear making someone reluctant to come forward.
Such fears indeed are real, but horribly misguided. Every time such anecdotes are passed along, the fears get increased. I have little doubt that you encouraged these women to report the abuse of their children (and/or reported it yourself).
I’m skeptical of such excuses (CPS child-napping) being offered up as legitimate reason for not reporting the abuse of one’s own child by a care-giver? Do you know of a case where this has actually happened. Or is this just a fear that someone might have that might influence their behavior?
I’ve got sympathy for people who make bad decisions because of unreasonable fear. But, there are limits. Protecting children has to be more important.
Add to that the natural skepticism that should result when folks try to excuse their own bad behavior after they’re caught and charged for doing something wrong. Such claims also add to the level of fear that makes life difficult for the poor and poorly educated facing choices.
JustSaying
I know of cases where CPS investigations have been launched in situations where I felt there was probably minimal cause, cases where I felt ( and reported) that I suspected abuse in which the children were not removed, and cases in which I felt the fear was probably unwarranted. One problem is apparently a lack of consistency between thresholds for action among social service workers. This is however, not an indictment of them. These issues are quite complicated and what is in the true best interest of the child is often not obvious or simple to enact.
Thanks for clarifying your views and experiences. I can appreciate the need for CPS to investigate most any report and we’ve pretty well come to demand such reaction from them. Being consistent and “right” is such an a difficult bar in this kind of endeavor. As you note, it’s complicated.
“This is on Judge Mock, who not only failed to clarify the legal theory from the jury, but then during sentencing assumed that they had convicted him of communicating with the intent to commit a forced oral copulation.”
“The case is then remanded back to Judge Mock, who needs to determine whether Mr. Artz has to register as a sex offender “
It doesn’t seem fair for the trial judge to be making the decision as to whether Mr. Artz needs to register as a sex offender.
Nemesis: I agree.
If Judge Mock was the one who gave the original sentence and told Artz he had to register, then why is he going to get to make this decision now. He may predisposed to give the same sentence. It seems that a new person should look at the case.
The only difference would be if Judge Mock made Artz register as a sex offender because of count 3 which the appellate court reversed. If this is so, then Judge Mock should take away the sex register requirement.
As I stated earlier, we don’t want this case to be a precedent where an 18 year old will have to register as a sex offender for having consensual sex with a high school classmate who was two years younger.
Medwoman and others, It would be nice if a law student or a lawyer explained the “being in possession of child porn” scenario. I was under the belief that if a stranger sends an email attachment to someone with adult porn, and within that attachment of adult porn images, adds child porn (even photoshopped images that are “fake”), then the person who accidentally opens the email and views it is “in possession” of child porn. If I am wrong, please tell me.
“We firmly believe that most people who go before Judge Mock get a reasonably fair trial. There are exceptions, of course, but by far the most egregious was the Michael Artz trial.”
My personal experience in Judge Mock’s courtroom was that he was extremely fair.
————————————————–
“I’m skeptical of such excuses (CPS child-napping) being offered up as legitimate reason for not reporting the abuse of one’s own child by a care-giver?”
I was personally threatened a few years ago by a police officer in Solano Co., when I lived in Davis. She questioned me; I stated I wanted my lawyer to advise me before I answered her questions. The police officer’s reply was, “I understand, but I’d sure hate to send Social Services to your house to question your children.” I didn’t live with the person she was “investigating”. The police officer harrassed me at my job in Sacramento & scared me. She tried to get me to corroborate her theories (which were wrong, by the way) about my friend. When I came to the station house to talk to her, she blatantly lied about my friend, to try to get me to corroborate her wrong assumptions. I didn’t report her to the Attorney General because she held the ultimate bullying chip: she could send CPS to my home to take my kids away while they “investigated” me. One day when I was at work, someone knocked on my front door. My son, in junior high, refused to open the door because he was home alone. The person was wearing a suit & yelled, “Yolo County Social Services”. My son told him, “Now is not a good time. I can’t answer the door to a stranger”. He did not open the door. I brought my case to a wonderful lawyer in Sacramento who was so appalled at the police department’s behavior that he counseled me pro bono. I’m writing a memoir about the persecution I suffered when I lived in Davis. There are many more examples. Once you are on the radar of law enforcement, they never leave you alone. I was 100% innocent and just happened to be a loyal friend to someone who was wrongfully accused of a crime he did not commit. A “series of unfortunate events”. So, yes, the police use scare tactics including CPS taking children away from a perfectly law abiding citizen, when they have a weak case against someone.
I often hear that we have a much better court system here than other countries. This could not be further from the truth. True, that we have a better system than many countries but it is also true that our system is horrible compared to many others. Yolo County has a systemic problem. Judge Mock is known to be very fair but it does not not necessarily guarantee free of mistakes. In the court room many unexpected things can happen. In the case of Ajay Dev, there were many such problems. And it did not even start in the court room. Yolo County stacked nearly a hundred counts of charges. If Duggard was given roughly 30 counts, then at the same rate Ajay should have been only facing 3 counts. Even most of the jurors thinking that the DA must have charged Ajay with so many counts is because he is guilty leads to so many errors. The recipe is very easy for conviction in Yolo County. Stack charges especially in sex-related case. Does not matter if there is no evidence. And even if all the evidences favor the accused (minus the DNA), he will surely be found guilty. The accused is guilty even before the innocence is fought for. Such was the tragic case of Ajay Dev. Despite the way Yolo County deals with over-stacking and even sometimes being influenced from Cash for Convictions, I still feel and hope that the Appellate Court will look at this case with an even mind critically and logically and realize that this case should have never even been brought forward and that there were so many errors and reverse it. Then,it will restore my faith in the American Judicial System. For more info on Ajay Dev’s case, see
http://www.seekingjusticefortheinnocent.com/index.php/ajay
my link was broken above. here it is.
http://seekingjusticefortheinnocent.com/index.php/ajay
Systemic problem,really? Support your claim — let’s say utilizing the data from last 20 years. FOIA is on your side, no?
JD, do a little research re: the elements of the crime then try again!
AdRemmer: Why don’t you try to walk in someone else’s shoes for a change? It was hard for me to write my criticism because my dad was a cop for many, many years. But what is right is right, and what is wrong is wrong. Try a little empathy, AdRemmer. And if you disagree with anything that bachha wrote, why don’t YOU do the research to back up your argument? Because when you start researching, you will see horrific errors in our criminal justice system. Is your argument that the majority of the time, the D.A. gets it right? If your family member was the one rotting in jail, would you say it’s okay because most of the time the D.A. bullies get it right?