Metropolitan News-Enterprise


Wednesday, October 27, 2010


Page 1


Forcing Unprepared Prosecutor to Trial Held ‘Sham’ by C.A.




The prosecution cannot be forced to go to trial prior to the end of the statutory speedy trial period, the Court of Appeal for this district has ruled.

Div. Three Monday also ruled that Los Angeles Superior Court Judge Robert P. O’Neill conducted a sham proceeding when he ordered a case to trial in the face of the prosecution’s announcement that critical witnesses had not appeared, then granted a defense motion for acquittal after a jury was sworn.

The panel ordered that a misdemeanor complaint charging Michael Anthony Graves with battering his wife and mother-in-law in 2004 be reinstated.

Prosecutors originally filed the charges after an incident in a store, where Graves allegedly grabbed his wife by the hair, then allegedly pushed both her and her mother to the floor after the mother intervened.

Graves was arraigned in 2008, pleading not guilty. Graves’ attorney said that both women were present in court, had viewed a videotape of the incident from a store security camera, believed the incident to have been an accident, and did not want the case to go forward.

Trial Set

Judge Lawrence Cho, who conducted the arraignment, set the case for trial 28 days later, noting that Graves was in custody at the time of arraignment, meaning that the case had to be brought to trial within 30 days. The judge ordered both women to return to court on the trial date.

When Cho called the case for trial, the prosecutor said the women were not present, although police witnesses were. Pointing out that both women had been ordered to appear, he asked the judge to trial the case.

Cho ruled that in the absence of proof the women had been subpoenaed, there was no good cause to trail the case, and sent it to Judge Stephanie Sautner, who was hearing the master calendar. When the prosecutor explained the situation and asked that the case trial, the judge replied that “you guys know the court rule” requiring that cases go to trial on their scheduled dates absent good cause for delay, “whether you agree with it or not.”

 The case was then assigned to O’Neill, who called it for trial that afternoon. When the prosecution again sought to trail, the judge said that “matter was resolved” in the master calendar department and the case was now “here for trial.”

Jury Panel Summoned

The prosecutor reiterated that he could not proceed, and said he was “instructed not to dismiss the case either.” The judge then summoned a jury panel, the prosecutor announced that he would “respectfully refuse to participate at this time in this proceeding,” and after ascertaining that the prosecution would still not go forward after a jury was sworn, proceeded to jury selection.

The prosecutor declined to give an opening statement. The defense then told jurors that they “will not hear from a single witness who saw Mr. Graves do anything wrong.”

After the prosecutor declined to call any witnesses, and reiterated his request that the case trial to the last day of the speedy trial period, the judge denied the request and granted the defense motion for acquittal under Penal Code Sec. 1118.1.

O’Neill declined a defense motion for sanctions, saying he did not hold the prosecutor responsible for “following the directions of his office.”

The judge acknowledged “some case law that expresses the right” to trail the case within Penal Code Sec. 1382’s speedy trial period, but said that “under the Rules of Court...and the policy of the Los Angeles Superior Court,” as well as under Penal Code Sec. 1050’s requirement that good cause be shown to continue a trial, the prosecution was required to proceed two days prior to the end of the 30-day period.

The prosecution appealed, but the Los Angeles Superior Court Appellate Division said the judge’s order was non-appealable and dismissed. The Court of Appeal granted a transfer to resolve the conflict between the prosecution’s right to have a case trail within the speedy trial period and the trial court’s authority to deny a continuance in the absence of good cause.

Right to Delay

Presiding Justice Joan Dempsey Klein, writing for the Court of Appeal Monday, said the conflict must be resolved in favor of the prosecution’s right to a delay, because it was the intent of the Legislature in adopting Sec. 1382 to give both sides adequate time to prepare for trial. Any court rule or policy to the contrary is invalid, the presiding justice said.

She cited a line of cases holding that good cause is not required to trail or continue a case within the statutory speedy trial period. The argument that either Sec. 1050 or the Rules of Court require such a showing, she said, is “unpersuasive.”

Klein also rejected the defense claim that reinstating the case against Graves would constitute double jeopardy. Graves was never in jeopardy, she said, because his trial was a sham.

She cited United States v. Scott (1978) 437 U.S. 82, in which the Supreme Court reversed a lower court ruling that the Double Jeopardy Clause barred reinstatement of charges that had been dismissed on the ground of pre-indictment delay. The defendant, the high court said, “by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant.”

Klein also cited a 2002 opinion in which Massachusetts’ highest court said a defendant was not placed in jeopardy after a judge excluded the prosecution’s evidence as a discovery sanction, began a non-jury trial, and then granted the defendant’s motion for acquittal. While the trial judge said the proceeding was a trial “because I say it is,” the Supreme Judicial Court said that as a matter of substance, “[t]he defendant was never in danger of conviction,” since there was “no trial on the merits.”

Attorneys on appeal were Deputy District Attorneys P, Phyllis C. Asayama and Susan K. Dozier for the prosecution and Deputy Public Defenders Nicholas Stewart-Oaten and John Hamilton Scott.

The case is People v. Graves, 10 S.O.S. 6072.


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