This trial started November 24, 2003 and is
now over.
August 6, 2004
by
hbm
(I apologize for uploading this SO late
after attending this hearing; unfortunately, in looking over my
notes I realized some of it doesn't make sense, and I can't
remember now how to fill in the blanks. Also, please note
that portions in red type were added later, as I was looking over
this diary, in an attempt to make it a bit more coherent. Whether
I succeeded or failed, here it is.)
Donna and I
arrive nice and early to hear the defendants’ motions for new
trial. Several of the jury members from the trial are present.
Judge Mertel, Shyrrel, and the jury members are chatting and
joking. Shyrrel says she misses them a lot. One of the jurors
jokes with the judge that "it's just not the same going to work.”
The motions are
supposed to start at nine, but by quarter-till we hear that the jail
has rejected the clothing sent up to the defendants. They are
extremely picky about how things are done, and even though the Judge
apparently sent it with a note, there was something procedurally
askew that prevented the jail from giving the clothing to the
defendants. So they won’t be arriving to court for another until
9:45. We pass the time by chatting with Noel Brady and Donna helps
me study for my upcoming Criminal Law exams, which I have made flash
cards for. I leave for the ladies room, and passing the jury
members on the way out, say “now you know why you always had to wait
back in the jury room forever!” Everyone gives a little chuckle.
The defendants
are brought in at
9:46.
James Konat
reads the matter into the record at Judge Mertel's request. It
starts with a role-call of who all is here. Marc Stenchever sits
with Atif Rafay, joined by a woman wearing a blue blazer and
sporting a dramatic, black bob cut. She, apparently, is Kate Ross,
who will be representing Atif from here on. Jeff Robinson and Song
Richardson sit with Sebastian Burns. Veronica Freitas is not
present. A gentleman named Professor John Jaquet (no idea if this
is spelled correctly) is present as a “friend of the court,”
officially, but it sounds like he will be representing Sebastian
from here on.
James is saying
that the matter at hand is one of Atif being "once again
disenchanted with his lawyers." Judge Mertel: I received
handwritten motion from Atif for new trial in light of insufficient
counsel.
Jeff and Song
and Prof. John someone sent Judge Mertel a sealed order which Judge
Mertel isn't going to read right now. It was Judge Mertel's
intention to go forward with motions already filed:
1) Denial of
expert testimony by Richard A. Leo, PhD, JD, regarding the taped
confessions (specifically, why they might not
be too compelling as “true” confessions)
2) Denial of information of Douglas Mohammed's contact to
Bellevue Police Department
3) Prosecutorial misconduct based on mentioning tragic beheading of
civilian in Iraq, and James's accusation towards the end of the
trial that a woman who testified was drunk (this was an eye-witness
from the dessert place they went after the movie who’s testimony was
favorable to the defendants’ alibi, and James’ insinuating that she
was drunk was a way to discredit her, I guess).
Judge
Mertel: motion for new trial will be heard later so there is ample
time to prepare. (I think this was in
reference to, specifically, the inadequate counsel motion).
Jeff apparently
doesn't want to proceed with arguments due to conflict of interest.
Basically, since there is a motion on the table (though it’s not
being discussed at this time), for mistrial based on insufficient
counsel, it is unfair to his client that he is being represented by
someone accused by him of being insufficient. Jeff then asks the
court to sign an order sealing the (aforementioned) documents filed
with the court. He doesn't believe anyone should see those until
such time as they are (possibly) needed for motion for new counsel.
Judge says the
issues related to Douglas Mohammed have been discussed and briefed
already (during trial, I take it),
but the prosecutorial misconduct issue has not. Jeff urges
postponement of discussion of these issues until Sebastian can have
them argued by conflict-free counsel (i.e. counsel whom defendants
aren't moving for misrepresentation against).
Marc concurs
with Jeff, and points out that at trial, there were objections
against James's comments, but it wasn't possible to go into any more
detail at that time. The movements for new trial for Sebastian and
Atif are conjoined.
Judge Mertel-
fails to see why he should seal the filed documents so the State
can't read them.
Jeff- because
Dr. Straight's opinions contained therein might become relevant at
the 9/10 motion hearing. (I have no idea
who Dr. Straight is. September 10th is the date of
sentencing, and the motion for new trial based on insufficient
counsel will be heard at that time, which is what Jeff was referring
to.)
Judge Mertel:
I’m not sealing (the papers filed by JR and SR) because we've
already heard most of what's in there before. Joquet joins Jeff in
asking to seal the documents.
James: We've
been down this road before. It's difficult to understand how we will
be able to make thoughtful responses to documents we haven't seen.
Jeff makes a good point that Sebastian has right to conflict-free
representation, but his current counsel is best positioned to argue
the other motions. Also, the mere accusation of ineffective counsel
doesn't make it so. Sebastian has filed a pro se request for new
counsel. Atif is of the opinion he was involved in prejudicial
representation for whatever reason. It’s silly to come here each
time defendants become disenchanted with their counsel.
Obviously,
James wants to NOT seal the filed documents, so the state can
see/talk about them.
Jeff: We will
give Mr. Joquet all the information and strategy pointers he needs
to represent Sebastian.
Judge Mertel:
Relating to the 3 motions at hand, this court finds they've been
extensively argued already, including the prosecutorial misconduct
motion.
Furthermore,
Judge Mertel will decline to seal documents from the state, but
will hold them for 10 days (until 8/18, at which point they'll
be given to the state) to give defense counsel time to get a stay
for that order from the court of appeals. Judge says a lot of tax
money has already gone into preparing these attorneys, and he
doesn't want to appoint new attorneys, but feels he has to.
Roger is now
talking, but it's too soft for me to hear. I think he's trying to
dissuade judge from granting motion for new trial based on need for
new trial (??? Maybe I meant to say new
defense counsel). This will cause huge problems
Jeff: We are
not quitters. The last thing we want to do is withdraw from
representing Sebastian, but it IS an actual conflict of interest.
Any court hearing the facts would agree their office has an actual
conflict of interest.
Marc stands and
agrees. Atif's counsel is in same situation.
Judge Mertel
says that, for the moment, he is NOT going to sign an order that the
defense counsel must withdraw. He wants defense counsel to work with
Mr. Joquet/ Ms. Ross, but counsel needs to be prepared to handle
sentencing, in case their motion pre-sentencing is also denied on
9/10.
Ms. Ross says
because she has just become involved in the past week, she has too
little information and too little time to prepare by 9/10.
(She’s trying to get sentencing pushed back
so she has more time to prepare; it also sounds like she’s going out
of town for a while in there, too, but Judge Mertel isn’t having
it.)
Judge Mertel:
it's time for closure on the matter, but with due process. Stay with
the 10th, and give Ms. Ross a chance to learn the dimension of the
problem.
He definitely
wants the motion (and supposing it’s necessary) sentencing done
before September 24th, because otherwise they will need a
waiver.
James: the 10th
is also a bad day for Roger (he’s leaving the country). Hearing
this, Judge Mertel says he wants a “comfortable date to be decided”
at a status conference on 9/3. If it can't be done on 9/10,
prosecution will stay until October.
Mr. Joquet:
there are still a lot of questions as far as the scope of the work;
the idea of status conference on 9/3 is a good one. With respect to
the documents Judge Mertel just ruled on, Joquet would like Judge
Mertel to keep them in chambers until 8/25 (because he's going out
of town, and I guess needs extra time to do the appeal to keep them
sealed, etc. etc.). Judge Mertel says ok.
Roger: We are
not departing here today sending Ms. Ross and Mr. Joquet out on an
odyssey to discover everything in the whole trial. It is a VERY
narrow issue of "did conduct of defense counsel fall so far below
acceptable standard during Sebastian's testimony as to warrant new
counsel?” He is asking the court to maintain strong adherence to
the narrow issue.
Mr. Joquet
asserts that it’s not as narrow an issue as Roger claims:
Sebastian's motion is not related to his direct alone, but also his
re-direct. (Basically, he’s saying he was inadequately prepared for
his testimony in court, both on direct and re-direct).
Judge Mertel
recaps his denial of the motion to seal the documents. It’s over
for the day, basically a total loss for the defense. |
