Monday, December 7, 2009
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Judge Delays Ruling on Bid to Dismiss Silberman Bribery Charges
By KENNETH OFGANG, Staff Writer
An Orange Superior Court judge Friday reserved ruling on motions to dismiss bribery charges against a Los Angeles Superior Court judge and two political consultants who handled his successful campaign for the bench last year.
Orange Superior Court Judge Richard King did not say when he would rule, but told attorneys for Judge Harvey Silberman and consultants Evelyn Jerome Alexander and Randy Steinberg that he had reviewed the grand jury transcripts and moving and opposing papers, and would consider their arguments and issue a minute order.
Attorneys for the three argued that the charges should be thrown out under Penal Code Sec. 995 due to substantive and procedural flaws in the grand jury proceedings leading to their indictment in July of this year.
Alleged Violations
The defendants are charged with violating Penal Code Sec. 653f(a) and Elections Code Sec. 18205.
The Penal Code provision says, among other things, that “[e]very person who, with the intent that the crime be committed, solicits another to offer, accept, or join in the offer or acceptance of a bribe...shall be punished by imprisonment in a county jail for not more than one year or in the state prison....”
The Elections Code section declares:
“A person shall not directly or through any other person advance, pay, solicit, or receive or cause to be advanced, paid, solicited, or received, any money or other valuable consideration to or for the use of any person in order to induce a person not to become or to withdraw as a candidate for public office. Violation of this section shall be punishable by imprisonment in the state prison for 16 months or two or three years.”
Steinberg lawyer Steve Meister said prosecutors failed to present sufficient evidence to satisfy their burden of showing probable cause, that jurors were improperly instructed and that exculpatory evidence was withheld. In particular, he said, they should have been told that a key witness, Superior Court Commissioner Lori Jones, had an antagonistic business relationship with SJA Strategies, the consulting firm run by his client and Alexander.
Jones, who was placed on administrative leave once her testimony became public, told grand jurors that she had developed a friendship with Alexander prior to Feb. 10 of last year and was considering retaining SJA to handle her second bid for election to the court.
She ultimately retained the firm, but the relationship ended prior to the general election due to a disagreement about payment, she said. Jones acknowledged meeting with Alexander at Jones’ home on Feb. 10, two days after Jones took out papers to run for several judicial seats, the one that Silberman and Murillo eventually ran for.
Jones testified that she knew that SJA was representing Silberman, so that if she hired them, she could not run for the same seat. She said she called several candidates and potential candidates that day, including Murillo, whom she spoke to twice.
Two Conversations
During the first conversation, Jones said Murillo told her she could not afford to move out of the race, because she had already paid the nearly-$1,800 filing fee. In the second conversation, Jones said, she told Murillo that Silberman was willing to pay the filing fee for another race.
Jones told the grand jury that she could not recall whether it was Silberman or Alexander who told her of Silberman’s willingness to pay Murillo’s way into another contest.
The grand jury, Meister argued, was left with the impression that Jones still had a friendly relationship with the consultants and thus had no motive to falsely implicate them. In fact, he said, Jones—who admitted to the grand jury that she had previously told district attorney investigators that she knew nothing about any inducement to Murillo—“has some serious credibility problems.”
What the grand jury was not told, Meister said, is that the firm was seriously pressing Jones for payment of its unpaid fees.
King, however, noted that jurors were told that Jones was testifying under a grant of immunity questioned whether evidence of any other motive she might have had for testifying as she did would be considered exculpatory and subject to mandatory disclosure.
Meister also argued that there was no showing that a judicial candidate is someone who can be bribed as a matter of law, and that prosecutors’ argument that a candidate is a “public official” or “public figure” or acts in a “public capacity” was based on analogies to First Amendment case law that cannot be read into a criminal statute.
Alexander’s lawyer, Larry Bakman, said no crime was committed under either statute because there was no effort to prevent anyone from becoming a candidate. At most, he said, there was an effort to convince a candidate to switch from one race to another, conduct that the Legislature never intended to criminalize, he contended.
He also scoffed at the prosecution’s suggestion that Silberman and Murillo were both “officials,” within the meaning of the bribery statute, because, among other things, their candidacies had been reported in the MetNews.
Daniel Nixon, who represents Silberman, said the grand jury should have been told that Jones’ statement implicating the consultants were hearsay that could not be imputed to his client.
He rejected the prosecutors’ “uncharged conspiracy” theory, saying there was no evidence of any agreement between Silberman and his consultants to offer anything to get Murrilo to switch seats.
He also pointed out that according to the indictment—which does not include a conspiracy charge and alleges that each of the defendants violated the two statutes on a different date—Silberman’s offenses are alleged to have occurred on Feb. 10. Jones said in her grand jury testimony that as best she could remember, she had not known or spoken to Silberman as of that date, Nixon pointed out.
But Deputy Attorney General Zee Rodriguez cited a stream of emails—obtained pursuant to a search warrant—between Alexander and Silberman, with copies to Steinberg, which the prosecutor characterized as showing that all three were interested in the possibility of getting Murillo to run for another seat if her filing fee or candidate statement was paid for.
Rodriguez also argued that instructional and proof requirements for grand jury proceedings are not as strict as at trial.
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