Friday, December 12, 2014
S.C. Orders Hearing on Bid to Boot Prosecutor From Death Case
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday ordered an evidentiary hearing on whether a deputy district attorney in Ventura County should be disqualified from a death penalty case.
Chief Justice Tani Cantil-Sakauye said attorneys for Joshua Graham Packer had raised sufficient doubts as to whether Michael Frawley, a top deputy in the District Attorney’s Office, has become so personally embroiled in the case that he must be removed in order for the defendant to get a fair trial. Those doubts can only be resolved through an evidentiary hearing, the chief justice wrote for a unanimous court.
Packer is charged with three counts of first-degree murder in the May 2009 deaths of Davina Husted, her husband Brock, and the fetus Davina Husted was carrying. The killings occurred at the Husteds’ house in Faria Beach, where the couple’s 9-year-old son said he saw a man wearing a motorcycle helmet rob his parents, and that he later found their bodies.
The victims were stabbed multiple times, and Davina Husted was sexually assaulted, police said. Packer was linked to the crimes following his arrest on unrelated felony charges more than six months later.
As a result of that arrest, Packer’s DNA was obtained and his profile matched to profiles taken from the crime scene. In addition to the murders, he is charged with two counts of robbery, one count of burglary, and one count of forcible oral copulation, with special circumstances of robbery-murder, burglary-murder, murder in the course of forcible oral copulation, and multiple murders.
In moving to disqualify Frawley under Penal Code §1424, the defense said it intends to call the prosecutor’s now-adult children—who participated in a youth group with the defendant—as witnesses, and that when it notified Frawley of that fact, he told his daughter not to cooperate with the defense team and sought to intimidate defense counsel with a motion for contempt based on untimely discovery.
Disqualification is also required, the defense argued, because Frawley’s daughter once dated a potential witness in the case, and because Frawley “appears to have known” Davina Husted through his former wife, who served on the board of a civic group when the murdered woman was its president.
Superior Court Judge Patricia Murphy ruled that none of the allegations amounted to a viable claim that Frawley had a personal embroilment in the case that would lead him to treat the defendant unfairly. The Court of Appeal for this district agreed.
Cantil-Sakauye said some of the points raised by the defense did not amount to grounds for disqualification. The prosecutor cannot be disqualified, she said, merely because his former wife—from whom he has been divorced since 1997—may have known the victim, or because his daughter may have had a brief romance with a potential witness.
But other allegations by the defense, she said, raise the “more substantial” question of whether Frawley “had become so personally involved in the case” that he could not treat the defendant fairly.
Affidavits submitted on the §1424 motion, the chief justice reasoned, raise an inference that Frawley acted with particular animus toward the defense once it brought his children’s relationship with an accused murderer into public view. While the prosecution’s affidavits favored a contrary view, that Frawley was a zealous but fair prosecutor who was not treating Packer any differently than he would another defendant charged with similar crimes, the trial judge should not have resolved that conflict on affidavits alone, Cantil-Sakauye insisted.
“[W]e believe that on the facts of this case the trial court’s choice of one inference over another was improperly made without hearing testimony, evaluating credibility, and resolving factual disputes that were key to determining the relative reasonableness of the alternative inferences raised by the parties’ affidavits,” Cantil-Sakauye concluded.
Conflicts in Evidence
The hearing, the chief justice elaborated, may resolve conflicts in the evidence as to how extensively the defendant and the prosecutor’s children socialized, whether the witness who previously dated Elizabeth Frawley was told by a prosecution investigator not to mention her if questioned by the defense, and whether the prosecutor had interfered with a defense attempt to subpoena his daughter, as well as conflicting statements regarding the defendant’s character that might have been made at different times by the prosecutor’s son.
The case was argued in the Supreme Court by Ventura Chief Deputy Public Defender Michael C. McMahon for the defendant and by Deputy Attorney General Steven D. Matthews of Los Angeles and Ventura Deputy District Attorney Michelle J. Contois for the prosecution.
The California District Attorneys Association filed an amicus brief supporting the prosecution.
The case is Packer v. Superior Court (People), 14 S.O.S. 5595.
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