Monday, October 25, 2010
Indicted Judge Loses Dismissal Bid, January Trial Date Set
By KENNETH OFGANG, Staff Writer
SANTA ANA—The judge hearing election bribery charges against a Los Angeles Superior Court judge and two campaign consultants declined Friday to dismiss the case, suppress evidence obtained pursuant to a pair of search warrants, or grant the defendants separate trials.
Orange Superior Court Judge Richard King, who is hearing the case by assignment after the local trial bench recused itself, set trial for Judge Harvey Silberman and consultants Evelyn Jerome Alexander and Randy Steinberg for Jan. 11. King, who had earlier announced that the trial would take place in Norwalk, granted a request by the defendants to move it to the downtown Foltz Criminal Justice Center.
The defense lawyers urged King to throw out the case, in which the defendants are charged with offering to pay Deputy District Attorney Serena Murillo’s filing fee, or candidate statement costs, if she would drop out of the race against Silberman two years ago.
Daniel Nixon, who represents Silberman, said his client was the victim of “a patently unfair process” in which Murillo “used the Los Angeles District Attorney’s Office as her own personal cavalry.” Murilllo, he said, took her complaints directly to her own office, which served as the initial investigating agency, and which remained involved in the case even after it passed the matter off to the state attorney general for prosecution.
It was the district attorney’s investigative staff, he noted, that obtained a search warrant for emails and telephone records that are being used to prosecute the defendants, and a deputy district attorney served as legal advisor to the grand jury which indicted them. And when it came to issuing the search warrant, Nixon said, the investigators “bypassed 150 judges” downtown and went “two miles down the road” to the Metropolitan Court, where they obtained the warrant from a judge who had worked with Murillo and donated to her campaign.
Steven Meister, representing Steinberg, said the district attorney conducted a slapped-together, “insane,” agenda-driven “meatball investigation,” likening it to the “meatball surgery” practiced on incoming wounded service members by Alan Alda’s Hawkeye character on the long-running television series “M*A*S*H.”
King said he would not express his own views on the prosecutors’ tactics, but that as a matter of law, “the court cannot conclude from the record...that the defendants cannot receive a fair trial.”
The judge Friday also:
•Overruled demurrers challenging Elections Code Sec. 18205, which says “[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,” as vague and overbroad.
•Denied motions to suppress evidence obtained in the search of Steinberg and Alexander’s phone and email records, as well as a separate search of their laptop computers.
The defendants claimed that the judge who issued the first warrant, Karla Kerlin of the Los Angeles Superior Court, was not a “neutral and detached magistrate” because she was a friend of Murillo—Kerlin was a deputy district attorney from 1990 until her appointment to the bench two years ago—and contributor to Murillo’s campaign.
King, however, said the $100 donation did not render Kerlin subject to disqualification and that the warrant was supported by probable cause. Even if the warrant was defective, he added, the investigators could not have known that and obtained it in good faith.
•Declined to order separate trials, reasoning that statements made by each defendant would be admissible against the others because the claim that they acted together for a common purpose was supported by a preponderance of the evidence. But he ordered that a statement made by Silberman after the election that might be deemed incriminating as to Alexander be excluded from the joint trial.
Deputy Attorney General Zee Rodriguez, who is prosecuting the case, said after the hearing that her office would likely forego use of the statement rather than ask for separate trials. The judge set a Nov. 19 hearing in the event the prosecutors decide otherwise and move for severance.
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