8.29.2007

ER - Chief wants concerns surrounding dropped rape charge to be kept private

Chief wants concerns surrounding dropped rape charge to be kept private
by Heather Muller , 8/29/2007

Concerns about a plea deal that resulted in a 19-day sentence for a man originally charged with rape will not be discussed publicly, said Arcata Police Chief Randy Mendosa.

“I do have some concerns about the process, which I’m going to be communicating to (Humboldt County District Attorney Paul) Gallegos, but it’s not appropriate to make those communications through the media,” Mendosa said Wednesday.

The chief’s concerns stemmed from the case of Clinton Lee Harris III, who was arrested by the Arcata Police Department April 18 and mistakenly released from the Humboldt County jail Aug. 3, while awaiting trial on charges of rape and burglary.

Harris was rearrested several days later but was let out again, this time intentionally, on Aug. 20 after the two felony charges were reduced to a single misdemeanor.

According to a news release issued in April by the APD, Harris was suspected of breaking into his ex-girlfriend’s apartment while she was asleep and raping her.

Deputy District Attorney Ben McLaughlin handled the case and said after the plea deal was announced that the case against Harris suffered from “problems of proof.”

“The victim and the defendant had a pre-existing romantic relationship and continued their relationship after their separation; there was not a (sexual assault) examination until 10 days post-event; and the victim’s roommate, who was home at the time of the alleged event, did not hear anything out of the ordinary,” McLaughlin had said.

Mendosa declined to specify his particular concerns with the deal, in large part, he said, because the case involved an alleged sexual assault.

“I don’t want my comments to make the process more difficult for rape survivors,” he said, “but I’ll be discussing the matter further with Mr. Gallegos.”

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

8.22.2007

DA candidates bring big dollars to county race
from the Times-Standard | News Articles | by James Faulk | May 26, 2006
More than $200,000 raised in campaign for county's top cop

EUREKA -- The money in the district attorney campaign is already more than double the amount spent in the 2002 race.
But the cash pales in comparison to that of the recall election two years ago.

According to figures received by filing deadline Thursday, incumbent District Attorney Paul Gallegos has so far topped his opponent, but not by much.

Gallegos raised $116,005 overall this year -- $84,067 in cash, and $31,937 in in-kind donations. He's spent $127,665, and has $6,197 remaining on hand.

His largest contributors include attorney Michael Acosta with Bear River at $1,000; Sonia Baur of Garberville at $1,000; the Bear River Band of the Rohnerville Rancheria at $10,000; C. Bowen of Berkeley at $5,000; Richard Cogswell and Ester Saunoras of Petrolia at $7,000; Orlando P. Gallegos of New Mexico at $10,000; Rory Hanson, a Eureka attorney, at $2,137; Law Offices of Jennifer Keller in Irvine at $2,500; Michael Shellenberger of El Cerrito at $1,000; Dana Soria and Mary Smith of Fortuna at $1,085; Tracy Katelman of Eureka, owner of Evergreen Forestry, at $1,786; and Rob Then of Whitethorn at $3,586.

He also received dozens of auction donations and three loans totaling $3,200.

Challenger and Deputy District Attorney Worth Dikeman has raised a total of $103,769 so far this year, $79,771 of it in cash. Of that, he's spent $73,499. As of May 20, he still had $37,785 on hand.

His biggest contributors were the Humboldt Deputy Sheriff's Organization, $1,000; Robin Arkley of Arcata, $6,000; former Fortuna Councilwoman Debi August, $1,550; T Garvey of Bayside, $1,730; S. Morris Logging and Contracting of Arcata, $1,900; TT Construction of Orleans, $1,000; Tomac LLC of Arcata, $5,000; and Jennifer Dikeman of Vallejo, $1,000.
SJR Masonry and Gold Coast Services also gave Dikeman a $2,000 custom-built barbecue.

Dikeman's donors include a long list of law enforcement officials, as well, from Neal Hubbard of the Eureka Police Department to Steve Knight of the Humboldt County Sheriff's Department.

In the recall election, the amount raised by all parties approached nearly $700,000.

In 2002, Gallegos only raised about $50,000 to beat Terry Farmer, who also raised about $50,000 in that election.

TS - Sheriff's Department taking precautions after accidental inmate release

Sheriff's Department taking precautions after accidental inmate release

Exact details on how a rape and burglary suspect was accidentally released from the Humboldt County Jail were not released Thursday, but the Sheriff's Department said precautions are being taken to make sure something like that won't happen again.

Clinton Lee Harris III, 26, was arrested Wednesday on A Street in Arcata after authorities discovered the mistake earlier in the day.

”We've identified the circumstances that contributed to this error and we are already taking steps to ensure this doesn't happen again,” said Sheriff's spokeswoman Brenda Godsey.

Harris was on the Sheriff's Work Alternative Program for a drunken driving conviction when he was arrested in April on charges of rape and burglary.

When he was booked into the jail the drunken driving conviction was put back onto his record and Harris automatically began serving the sentence.

The sentence for the DUI was completed Friday and Harris' name appeared on a list of people to be released.

When the mistake was discovered Wednesday, the jail informed the Arcata Police Department, whose case it is, and officers and personnel began working with Sheriff investigators.

Godsey said there was no indication by victim that she wished to be notified when Harris was released, which is a standard process usually asked by the investigating officer at the time of the arrest and marked on a booking sheet.

”Our staff made attempts to contact her,” said Arcata Police Capt. Tom Chapman.
Chapman said personnel went to the victim's home, but he was not sure if they actually made contact with her.

Godsey said investigators were in the process of getting a warrant Wednesday before notifying the public, but had reason to believe Harris was not a flight risk and was still in the area.

Part of that determination was made because a judge granted Harris a pass from jail on July 29 for the birth of his child and he returned Aug. 1 -- the date he was ordered.

He was tracked down through leads and acquaintances and when police met with the mother of Harris' child as part of the investigation, Harris was in the car and arrested without incident.

Officials said he didn't give any indication whether he knew he wasn't supposed to be released.

Chris Durant/The Times-Standard
Article Launched: 08/10/2007 04:27:19 AM PDT

TS - Inmate accidentally released from jail

Inmate accidentally released from jail
The Times-Standard
Article Launched: 08/09/2007 04:15:32 AM PDT

A Humboldt County Jail inmate was accidentally released Friday, and within hours of authorities noticing the mistake Wednesday he was taken back into custody without any problems.

Brenda Godsey of the Humboldt County Sheriff's Departement said Clinton Lee Harris III, 26, was taken into custody about 7:45 p.m. Wednesday when authorities found him at a house on A Street in Arcata.

Harris, who was in custody on rape, burglary and a separate drunken driving charge, was accidentally freed when his name appeared on a list of inmates to be released.

Harris was part of the Sheriff Work Alternative Program for the DUI charge at the time of his April arrest on suspicion of rape and burglary by the Arcata Police Department.

When he was rebooked, the DUI charge was put on his list of charges and he automatically began serving the jail sentence for the DUI.

His DUI sentence was completed Friday, which triggered his appearance on the release list.

”His name came up as he completed his DUI sentence,” said Brenda Godsey of the Sheriff's Department.

Comments from TS site:

he was probably grateful to be out and had every intention and will to go straight with his new found freedom and probably would have while contributing to society by working, paying taxes, purchasing local goods from wherever he was. But instead he is back in jail at the outrageous cost we, the taxpayers have to spend. I think this guy would have been fine if left alone and now we have a expensive tab to pay for years of incarceration along with the grudge he might hold to society; which is the biggest personal crime of all we, as a people, can inflict upon another.
John M | 08.09.07 - 7:50 pm

Yea he wouldn't have been fine out there if it was your daughter, wife, grandchildren or some other female in your life that was raped. You're a moron. I gladly as a tax payer will pay my taxes to keep people like that off the streets.
Anonymous | 08.09.07 - 10:02 pm

The first writer is a humorist, not a moron. Well done, old chap! Bravo!
Free Ramos and Campean | 08.09.07 - 11:06 pm

You know, a description and mug shot of this guy would've been nice.
As a survivor of an assualt and rape I can imagine the fear going through the minds of his vicims.
The writer of the first item I know was being tongue in cheek even if it was a bit tasteless. Over sensitivity isn't my style and we do have a right to express ourselves no matter how inane.
Officer Liles, can ya bag this one for us, too? Hey we all need our heroes!
Rebelle | 08.10.07 - 6:35 pm

What ever happend to being innocent until proven guilty. Who's to say there was really a victim? Im sure he was just as surprised as everyone else to have been released.But is he to be held accountable for that??
APRIL | 08.14.07 - 3:53 pm

ER - Arrest made in alleged sexual assault incident

Arrest made in alleged sexual assault incident
4/18/2007

A 25-year-old Arcata man has been arrested in connection with a sexual assault alleged to have occurred April 11.

According to a news release issued by the Arcata Police Department, Clinton Lee Harris III was taken into custody after a lengthy investigation.

Harris was booked into the Humboldt County jail on suspicion of forcible rape, and is currently being held in lieu of a $100,000 bond.

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

ER - Rape suspect re-arrested after he was mistakenly released

Rape suspect re-arrested after he was mistakenly released
by Heather Muller , 8/8/2007

A man suspected of breaking into a woman’s Arcata apartment and raping her returned to custody Wednesday night after he was mistakenly released Friday from the Humboldt County jail.

Clinton Lee Harris III, 25, of Arcata, was arrested April 18 and was awaiting trial on rape and burglary charges stemming from the incident, reported April 11.

Public Information Officer Brenda Godsey from the Humboldt County Sheriff’s Office, which manages the jail, said that at the time of the arrest Harris was already serving a four-month sentence in the Sheriff’s Work Alternative Program for a driving under the influence of drugs and/or alcohol conviction.

His arrest on the rape and burglary charges, she said, violated the terms of his participation in SWAP.

So when he was re-arrested on the new charges, he was also booked into the jail on the DUI case, Godsey said, and that sentence — 120 days — was calculated to determine his custodial status.

“When he served the balance of that sentence, his name showed up on a report that is generated each night that indicates which inmates are scheduled for release. However, he still had the other case pending, and that was missed during the release process,” Godsey said.

APD Capt. Tom Chapman called Harris’ release “unfortunate,” but added, “The correctional facility does an outstanding job, and obviously it’s an oversight on their part.”

Chapman noted, however, that the circumstances of Harris’ alleged offense were troubling.

“In looking at the crimes Mr. Harris was involved in, it’s clear to us in our investigation that he’s a dangerous person. … We’re aware of a previous offense. We’re aware of another victim. He has not been prosecuted for that,” Chapman said.

“But for him to be out is obviously very concerning for us,” he said Wednesday afternoon. “So hopefully we’ll be able to get him back in custody in short order.”

He didn’t have long to wait.

Shortly before 8 p.m., Godsey announced Harris had been re-arrested by sheriff’s deputies and APD officers.

“He was located at an Arcata residence and taken into custody without incident,” she said.

But she acknowledged that his release was a mistake.

“It should not have happened. We are looking into the matter and taking steps to ensure that it does not happen again.”

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

Related:
ER Arrest made in alleged sexual assault incident 4/18/07
ER Rape suspect re-arrested after he was mistakenly released 8/8/07
TS Inmate accidentally released from jail
TS Sheriff's Department taking precautions after accidental inmate release
Mistakenly released inmate re-released Monday

ER - KILLER GETS 72 YEARS TO LIFE

KILLER GETS 72 YEARS TO LIFE
by Heather Muller , 8/21/2007

Thomas Arthur Applegate was sentenced Tuesday to three life sentences plus seven years in the 2003 Bridgeville murder of Joey Church and the attempted murder of Church’s neighbor Ross Condemi.

The stiff sentence was the last stop on an emotional roller coaster ride for the slain man’s family, who listened in disbelief early in the day’s proceedings as Applegate’s lawyer discussed his motion, filed Tuesday, for a new trial.

Humboldt County Public Defender Kevin Robinson argued that an expert witness during the sanity phase of the trial demonstrated “bias or prejudice” in a Times-Standard interview published Monday, and that the jury verdict was “contrary to evidence and the law.”

District Attorney Paul Gallegos opposed the motion.

“I believe the evidence was and is overwhelming,” Gallegos said, arguing that there was abundant support for the conclusions of the witness, Dr. Robert Soper, a psychiatrist who testified for the prosecution.

Judge John T. Feeney agreed with the prosecution. He denied the motion and — to the family’s audible relief — cleared the way for sentencing to proceed.

“I do find that the evidence presented at trial did have sufficient probative value to sustain the verdict,” Feeney said, adding that he did not find bias in Soper’s post-trial statements and did not believe a different verdict would result from a new trial.

Feeney then listened as family members made statements to the court about the loss of Church, a father of three children and part of a close-knit, extended Bridgeville family.

“His 5-year-old daughter will never remember him,” one of Church’s sisters said. “My father will never have another son, and I will never have another brother.”

“We all have a huge hole in our life. There’s not one of us, one of us, who will ever be whole again.”

Applegate stood next to his attorney and stared straight ahead during the impact statements, glancing only occasionally at the speakers. He declined to comment before punishment was handed down.

Feeney sentenced Applegate to 15 years to life for the second-degree murder of Church, with an additional 25-to-life sentence for the enhancement of discharging a firearm causing death.

He was further sentenced to a determinate term of seven years for the second-degree attempted murder of Condemi, with another 25-to-life for the enhancement of using a firearm during the crime.

All terms are to run consecutively, Feeney said, which means Applegate would not be eligible for parole until at least 2079.

“I’m just glad he got what he got,” the victim’s father, Richard Church, said after the proceedings.

The prosecutor’s feelings about the verdict, however, were harder to read. On his way out of the courtroom, Gallegos looked at the convicted killer and said, “Good luck, Mr. Applegate.”

“Prison’s not a pleasant place,” the district attorney explained later. “This was a terrible tragedy for the Church family, and a terrible tragedy for the Applegate family.”

The prolonged court proceedings stemmed from the May 4, 2003, shooting in Church’s Bridgeville home.

Church was watching an episode of “The Simpsons” on television with his family and Condemi when Applegate, a resident of Paso Robles, knocked on the door, apparently at random, and asked if the house was for sale.

He spoke briefly with the men before pulling out a gun and killing one and injuring the other. It is believed neither man had ever seen Applegate before.
Proceedings were continued until Tuesday to review clarified calculations of Applegate’s time served in this case and a previous conviction in San Luis Obispo County.

An appeal of the case is automatic due to the strict sentence handed down.

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

8.21.2007

ER - Defendant in Mad River dogs case accepts plea deal

Defendant in Mad River dogs case accepts plea deal
by Heather Muller , 8/20/2007

After weeks of negotiations, one of three suspects in the deaths of dozens of dogs in Mad River has agreed to plead guilty to a single count of animal cruelty in exchange for his testimony against the other two defendants.

Roger Zampatti entered into the agreement late last week, said Trinity County Deputy District Attorney Eric Heryford, who is prosecuting the case.

Zampatti and co-defendants John and Stacy Malcolm stood accused of 41 counts each of felony cruelty to animals and one additional charge apiece stemming from the discovery of a small marijuana growing operation on the former Mad River property of Roberta Bugenig.

Under the terms of the deal, the remaining 40 animal abuse charges and the drug charge against Zampatti will be “dismissed in a technical sense,” Heryford said, but can be considered by the judge for purposes of sentencing.

The only other condition, said the deputy district attorney, is that Zampatti was promised he could serve his sentence in the Trinity County Jail.

“I didn’t feel I had enough evidence against John Malcolm,” Heryford said. “By getting this statement and information from Mr. Zampatti, that gives us evidence as to John Malcolm’s involvement in the case.”

He added that he hopes the statement “will clear up the timeline and some of the details” of the case.

Timothy Noal Gray, the Malcolms’ defense attorney, said the plea deal was just one more sign of a rush to judgment against his clients.

“They’re not concerned about who’s guilty. They’re just concerned about getting a conviction. There was never any real investigation. They never seriously considered anyone but my clients. It was a very high-profile case, and they just want a conviction.”

Gray has contended from the start that his clients did not own and were not responsible for the animals, but did the best they could to care for them after Bugenig was arrested, convicted and imprisoned for brandishing a firearm at law enforcement officials who were attempting to forcibly evict her from the property.

Public officials from both Trinity and Humboldt counties were aware of the existence of the dogs, he said, and apparently did not find cause to intervene.

“Everybody expressed a lot of concern and surprise and disgust and everything, but there was no real investigation.”

Thirteen surviving dogs were removed from the property on Aug. 11, 2006, after dead dogs found dumped in a nearby forest were traced back to the property.

Heryford said Zampatti is looking at a maximum of one year in jail, but would not be sentenced until after the Malcolms’ trial, which is set to begin in September.

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

Related Stories:
Two mass dog graves discovered near Mad River 8/16/2006
Trinity County Animal Control warned of dogs' plight since 2005 8/18/2006
"Dogs seemed fine," Animal Control Officer Edwards says 8/18/2006
Defense attorney says John and Stacy Malcolm not to blame for abuse of dogs 8/18/2006
Dogs' condition consistent with starvation, report states 8/20/2006
Death toll rises in Mad River dog deaths 8/22/2006
IN THE 'INTERESTS OF JUSTICE'? 8/23/2006
Evidence mounts in animal abuse case 8/24/2006
Report details 'horrific' conditions 8/26/2006
Community responds to dogs' abuse by donating to rescue 8/27/2006
51 CHARGES FILED IN DOG CASE 8/30/2006
National Animal group challenges Gallegos over abuse case 8/30/2006
National, international animal groups weigh in on abuse scandal 8/30/2006
ER Editorial - Specious arguments
8/30/2006
78 additional felonies charged in Mad River dog abuse case 9/1/2006
Malcolms 'walked through' arraignment 9/2/2006
When law enforcement fails, 'vigilantism' sometimes needed 9/4/2006
Third suspect in dog case arraigned 9/7/2006
Mad River dog abuse case suspect speaks out 9/9/2006
Hearing set for Mad River dog suspects 9/14/2006
Dog suspects head for trial 10/13/2006
Code addressing animal abuse requires low burden of proof 10/16/2006
Animal abuse linked to serial killings, needs to be addressed 10/16/2006
Gallegos says he will not file felony in Bugenig horse case 10/21/2006
If Lucky had been seized, perhaps he would have survived 10/23/2006
Original owner of Mad River dogs released from prison 11/1/2006
Malcolm attorney requests charges be dropped 12/13/2006
Defendant in Mad River dogs case accepts plea deal 8/20/2007

8.20.2007

ER - Murder retrial an example of why writer left Humboldt County

Dear Editor,

Humboldt County’s esteemed district attorney wants to deal with Kesser for hiring someone to kill his wife? Both Kesser and his girlfriend should be retried and hopefully found guilty one more time.

The entire retrial is a farce to begin with! Both of these individuals should rot in prison for the rest of their lives for arranging the murder!

Just because Gallegos resented Worth Dikeman is no reason to set these two free or make a deal with them.

Mary Kesser was brutally murdered in her home — the innocent victim of three twisted minds. Her son has been left without a mother. What is the judicial system coming to in Humboldt County? It seems to me that it’s all politics. Where is the justice in that?

This is just one more reminder of why I left Humboldt County.

Kathy Sutter
Reno, Nev.
Murder retrial an example of why writer left Humboldt County
8/19/2007 Copyright (C) 2005, The Eureka Reporter. All rights reserved.

TS - Doctor gives view on sane verdict in Applegate case

Promised as some in-depth analysis of the murderer, Thomas Applegate, there is nonetheless nothing new in this article, but it's part of the record.


Dr. Robert Soper
Doctor gives view on sane verdict in Applegate case
Man set to be sentenced for murder in Bridgeville

Dr. Robert Soper, the psychiatrist who was a prosecution witness in the sanity phase of the Thomas Applegate trial, described Applegate as being “on the run” when he walked into a Bridgeville home high on methamphetamine and shot two men, killing one.

Thomas Applegate
A jury found Applegate was sane at the time he killed Joey Patrick Church in May 2003. Another man was wounded. The same jury found Applegate guilty of second-degree murder and second-degree attempted murder. His sentencing is set for Tuesday.

Soper talked to Applegate on two different occasions, but well after he was arrested for assaulting a woman in Southern California just days after the killing. Soper said Applegate was on meth for about two weeks when he drove from Southern California believing he was going to buy Bridgeville.

Soper learned that Applegate had been using controlled substances and alcohol since he was a young teenager. He used methamphetamine for about 15 years, stopped for eight years, and recently, just months before the killing, started again, Soper said.

Feeling lethargic and depressed may have led him to use meth again, Soper said.

”Amphetamines, in the short run, would help with his depression,” Soper said.

“In essence, he was self medicating.”
Applegate's attorney, Kevin Robinson, declined to comment on Soper's comments, saying they “exceed areas of his testimony at trial.”

Soper listed the possible effects Applegate may have been experiencing: Enhanced energy, enhanced concentration, improved mood, euphoria, talking fast, erratic train of thought and grandiose beliefs.

”He was going up to Bridgeville to buy Bridgeville,” Soper said. “That's grandiose.”

A methamphetamine-induced psychosis is very similar to schizophrenia psychosis or mania, Soper said.

Applegate was hearing things and because he can't remember the incident, exactly what may have sent him into a homicidal mode is unknown.

”It's crazy because he had no motive to shoot these people,” Soper said.

But, Applegate wasn't insane at the time of the killings, Soper said.

He claims not to remember anything about the shootings. But, according to Soper, there are some signs that he understood he was doing something wrong.

For instance, when Applegate entered the home, he made the children go into another room before shooting the two men.

”It shows there's some awareness of what he was doing was wrong and it was something kids should not see,” Soper said.

Other signs are that he returned the gun, which he took from his parents' house, and he attempted to hide the weapon's cartridges in the couch of an acquaintance.

”It is my experience that most people who are using meth, like alcoholics, do not understand how much their behavior has changed,” Soper said. “It's a tragedy for everyone involved.”

The awareness of the damage meth does to people, families and communities is on the rise, not just in Humboldt County, but nationwide.

Mike Goldsby, program manager for health education for the Department of Health and Human Services, said meth has been a problem since about the late 80s in Humboldt County.

”When a drug has been prevalent for a lot of years you begin to see multi-generational effects,” Goldsby said.

And the problems add up.

”The problems caused by meth are out of proportion to the number of people who use,” Goldsby said.

He explained that by saying meth users tend to get into more kinds of trouble and need more kinds of services, from health to social services, than other drug users, and that adds to the toll the drug takes on a community.

Humboldt County Supervisor Jimmy Smith, part of the Speed Prevention and Awareness Network, said he's beginning to see a results from numerous efforts.

”We think we're making a difference with the youth we're doing outreach with,” Smith said.

But, he recognizes there's a lot of work left to rid the area of the drug.

”We're hitting it every which way we can,” Smith said.

Chris Durant The Times-Standard Article Launched: 08/20/2007 09:13:54 AM PDT
Chris Durant can be reached at 441-0506 of at cdurant at times-standard.com .

8.17.2007

Admission of polygraph evidence Code Section 351.1

EVIDENCE CODE SECTION 350-356

350. No evidence is admissible except relevant evidence.

351. Except as otherwise provided by statute, all relevant evidence
is admissible.

351.1.
(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.

(b) Nothing in this section is intended to exclude from evidence
statements made during a polygraph examination which are otherwise
admissible.


352. The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.



352.1. In any criminal proceeding under Section 261, 262, or 264.1,
subdivision (d) of Section 286, or subdivision (d) of Section 288a
of the Penal Code, or in any criminal proceeding under subdivision
(c) of Section 286 or subdivision (c) of Section 288a of the Penal
Code in which the defendant is alleged to have compelled the
participation of the victim by force, violence, duress, menace, or
threat of great bodily harm, the district attorney may, upon written
motion with notice to the defendant or the defendant's attorney, if
he or she is represented by an attorney, within a reasonable time
prior to any hearing, move to exclude from evidence the current
address and telephone number of any victim at the hearing.
The court may order that evidence of the victim's current address
and telephone number be excluded from any hearings conducted pursuant
to the criminal proceeding if the court finds that the probative
value of the evidence is outweighed by the creation of substantial
danger to the victim.
Nothing in this section shall abridge or limit the defendant's
right to discover or investigate the information.



353. A verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless:
(a) There appears of record an objection to or a motion to exclude
or to strike the evidence that was timely made and so stated as to
make clear the specific ground of the objection or motion; and
(b) The court which passes upon the effect of the error or errors
is of the opinion that the admitted evidence should have been
excluded on the ground stated and that the error or errors complained
of resulted in a miscarriage of justice.



354. A verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the
erroneous exclusion of evidence unless the court which passes upon
the effect of the error or errors is of the opinion that the error or
errors complained of resulted in a miscarriage of justice and it
appears of record that:
(a) The substance, purpose, and relevance of the excluded evidence
was made known to the court by the questions asked, an offer of
proof, or by any other means;
(b) The rulings of the court made compliance with subdivision (a)
futile; or
(c) The evidence was sought by questions asked during
cross-examination or recross-examination.

355. When evidence is admissible as to one party or for one purpose
and is inadmissible as to another party or for another purpose, the
court upon request shall restrict the evidence to its proper scope
and instruct the jury accordingly.

356. Where part of an act, declaration, conversation, or writing is
given in evidence by one party, the whole on the same subject may be
inquired into by an adverse party; when a letter is read, the answer
may be given; and when a detached act, declaration, conversation, or
writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may
also be given in evidence.

8.16.2007

TS - Kesser cuts deal in murder case

Kesser cuts deal in murder case
Chris Durant/The Times-Standard
Article Launched: 08/16/2007 04:27:16 AM PDT

A Fortuna man accused of hiring a hitman to kill his estranged wife in 1991 reached a plea agreement with the District Attorney's Office Wednesday that could require him to testify against his former girlfriend.

Richard Craig Kesser's retrial was scheduled to begin this week.

Under the agreement, Kesser is required to make a full statement and answer any questions regarding the death of his estranged wife, Mary Kesser. He will also have to take a polygraph test and testify “truthfully” in any trial related to her death.

If Kesser completes all of the conditions, he will be convicted of second-degree murder and sentenced to 15 years to life in prison. If he lies during questioning or commits perjury while testifying, Kesser will be convicted of first-degree murder and sentenced to 25 years to life.

The District Attorney's Office also agreed to drop the special circumstance count of murder for monetary gain, a move which makes Kesser eligible for parole. As part of the deal, Kesser waives his right to appeal his conviction.

Kesser may be called to testify in the trial of his one time codefendant and girlfriend, Jennifer Gayle Leahy.

Leahy and Kesser were granted retrials by the U.S. 9th Circuit Court of Appeals based on the actions of a former deputy district attorney. The appeals court found the former deputy district attorney rejected potential jurors “on the basis of their race, in violation of the Equal Protection Clause of the 14th Amendment.”

Kesser and Leahy allegedly hired Duane Chiara to kill Mary Kesser, reportedly for her life insurance money.
The young mother was killed in her N Street home in Fortuna on Nov. 26, 1991. She was stabbed multiple times with what is believed to be a machete-type weapon. Leahy is due in court Monday for a hearing.

Chiara has also been brought back to Humboldt County as a possible witness in the case.

”The parties have the power to call him,” said District Attorney Paul Gallegos, the prosecutor in Kesser's retrial.
If Kesser refuses to testify, make statements or take the polygraph, the plea agreement is off the table.

”That would be in violation of the agreement,” said Superior Court Judge Dale Reinholtsen.

Kesser, with slicked back hair and a short beard, quietly answered yes to all of Reinholtsen's questions.

After Wednesday's proceeding, Kesser shook hands with his attorney Glenn Brown and was escorted back to the jail.

Fortuna Police Chief Kris Kitna, who worked on the Kesser case in 1991, said he trusted the district attorney's judgment.
”As far as the Fortuna Police Department is concerned, we are essentially satisfied with this agreement,” he said.

If the plea agreement is accepted, which won't officially happen until Leahy's trial is completed, and Kesser complies with the orders of the agreement, he will also be convicted of a felony criminal threats charge, which is a strikeable offense.

”If he's ever paroled, he'll have two strikes against him,” Gallegos said.

If Kesser is convicted of the second-degree murder charge, he may be immediately eligible for a parole hearing because he's been in prison for 16 years. Gallegos said it is unlikely that Kesser will be paroled.

Gallegos also said Mary Kesser's family was made aware of the plea agreement and was part of the decision process.
”They have to know; it's their right,” Gallegos said. “And it's common decency.”

A deal for Leahy will not be discussed now, Gallegos said.

”We have to see what Mr. Kesser has to say,” he said.

Brown declined to comment on the plea agreement, citing Leahy's pending case.

TS - Homicide retrial now looking to start Thursday

While the Eureka Reporter reports (DA says plea deal a possibility in murder retrial) that Gallegos is likely to cut a plea deal with the convicted murderer, Kesser, the Times Standard reports that the trial has been postponed:

Homicide retrial now looking to start Thursday
Chris Durant/The Times-Standard
Article Launched: 08/15/2007 04:15:47 AM PDT

The retrial of a man suspected of hiring a hitman to kill his estranged wife in 1991 has been postponed a few more days.

Humboldt County District Attorney Paul Gallegos said Tuesday that the homicide retrial of Richard Craig Kesser now looks like it will start Thursday.

Last week, Gallegos said he believed the trial would start Monday.

Kesser and his girlfriend, Jennifer Gayle Leahy, allegedly hired Duane Chiara to kill Mary Kesser, reportedly for her life insurance money.

The young mother was killed in her N Street home in Fortuna.

She was stabbed multiple times with what was believed to be a machete-type of blade.
Chiara was arrested a day later when he was found hiding in a closet. A sawed-off shotgun was found nearby. The other two defendants were arrested after a month.

Retrials were granted to Kesser and Leahy by the U.S. 9th Circuit Court of Appeals based on the actions of a former deputy district attorney. The court found he rejected potential jurors “on the basis of their race, in violation of the Equal Protection Clause of the 14th Amendment.”

It is unclear if Leahy and Kesser will be tried together.

Turns out, the next day, Gallegos does indeed cut a deal with Kesser, (Kesser cuts deal in murder case) not with Leahy, who played the lesser role in the murder for hire scheme they were convicted of, but with Kesser - who as part of the plea deal will "tell the truth" and presumably testify against Leahy.

It is part of the incomprehensible record of paul Gallegos, who will prosecute Sean Marsh for allowing his toddler to walk too far in front of him on the sleepy streets of Ferndale, but who will let jurderers and rapists strike deals.

8.15.2007

TS - Inmate who escaped from Sempervirens caught

Inmate who escaped from Sempervirens caught
Chris Durant/The Times-Standard
Article Launched: 08/15/2007 04:15:46 AM PDT
A man who escaped from Sempervirens Hospital while he was an inmate at the Humboldt County Jail was arrested in Manila Tuesday by Humboldt County Sheriff's detectives .

Derek Wendell Bowman, 26, answered the door of a Manila home and was arrested just before 3:30 p.m.

He escaped from the mental hospital on Aug. 5.

The Sheriff's Department said Detective Troy Garey received information that Bowman was hiding at the house on the 100 block of Phillips Court.

Garey, other detectives and a U.S. marshal arrived at the home and Bowman was arrested without any problems.

He was booked into the jail on suspicion of escape and for a series of charges pending while he was in custody the first time, which include forgery and resisting arrest.

In August 2006, Bowman was sentenced to 180 days in jail for forgery, second-degree burglary, interfering with a police officer and possession of drug paraphernalia convictions.

He is not eligible for bail.

ER - DA says plea deal a possibility in murder retrial

.
"Behind a locked courtroom door?" What's up with that?

DA says plea deal a possibility in murder retrial
The retrial of two of three people convicted 15 years ago in the brutal slaying of Fortuna resident Mary Kesser may be over before it begins.

Following days of speculation within the law enforcement community, Humboldt County District Attorney Paul Gallegos confirmed late Tuesday that a plea deal is possible in the first-degree murder case of Richard Craig Kesser and Jennifer Gayle Leahy.

In response to an e-mail question about a possible negotiated settlement, Gallegos stated, “Are there proposals out there? Yes. Have we reached an agreement? No. Is it possible that we will? Yes.”

Richard Kesser and Leahy were convicted in 1992 of hiring Stephen Duane Chiara to kill Mary Kesser, Richard’s estranged wife, a charge that included special allegations of murder for financial gain and lying in wait.

Mary Kesser, 30 years old and the mother of a then-4-year-old boy, was found two nights before Thanksgiving 1991 in her N Street home stabbed 34 times in her head, chest, back, abdomen and hands, according to court documents.

Chiara was quickly arrested, and within days police followed a trail of clues back to Richard Kesser and Leahy in what investigators called a murder-for-hire plot.

Attorneys for the two argued that Chiara was hired to blow up Mary Kesser’s car, not to kill her.

All three were convicted in 1992 and sentenced to life in prison without the possibility of parole — but the case, originally tried by former Deputy DA Worth Dikeman, was overturned on appeal in September, after a higher court found that he had made “blatant race-based strikes” of three American Indians from the approximately 140-member jury pool.

Within days of the appellate ruling, Dikeman, who twice campaigned against Gallegos for DA, was fired from his position. He subsequently called the reversal the “biggest disappointment” of his career.

Jury selection for the retrial began in July, and pretrial motions continued Tuesday behind a locked courtroom door.

Gallegos stated later, “There are, like in all cases, constant discussions involving possible dispositions. … (W)e always strive to be reasonable, open-minded and receptive to appropriate pretrial dispositions. That means we always strive to listen to proposals and fairly consider them.”

Kesser’s family, who met with the DA Tuesday, declined to comment.

***
Why would you plea bargain a proven winnable case? And what's with the locked courtroom door? Is that common?

God, this is a great time to be a criminal in Humboldt County. Murderer, Rapist, Child Molester, Drunk Driver, Drug Dealer, whatever...
***
In the TS - Homicide retrial now looking to start Thursday
The retrial of a man suspected of hiring a hitman to kill his estranged wife in 1991 has been postponed a few more days.

Humboldt County District Attorney Paul Gallegos said Tuesday that the homicide retrial of Richard Craig Kesser now looks like it will start Thursday.

Last week, Gallegos said he believed the trial would start Monday.

Kesser and his girlfriend, Jennifer Gayle Leahy, allegedly hired Duane Chiara to kill Mary Kesser, reportedly for her life insurance money.

The young mother was killed in her N Street home in Fortuna.

She was stabbed multiple times with what was believed to be a machete-type of blade.

Chiara was arrested a day later when he was found hiding in a closet. A sawed-off shotgun was found nearby. The other two defendants were arrested after a month.

Retrials were granted to Kesser and Leahy by the U.S. 9th Circuit Court of Appeals based on the actions of a former deputy district attorney. The court found he rejected potential jurors “on the basis of their race, in violation of the Equal Protection Clause of the 14th Amendment.”

It is unclear if Leahy and Kesser will be tried together.
***
9th Circuit Opinion - KESSER v CAMBRA No. 02-15475, D.C. No. CV-96-03452-PJH, OPINION *Decided and filed together with the companion case of Leahy v. Farmon, No. 01-17467, (pdf file) No. 01-17467, (9th Cir. 2006) (unpublished disposition).

8.07.2007

ER - Council to rule on Cooke claims

Council to rule on Cooke claims
by Glenn Franco Simmons, 8/6/2007

Eureka City Attorney Sheryl Schaffner has recommended that the City Council at its meeting tonight reject two separate claims for damages stemming from the law enforcement shooting death of Zachary Cooke in January.

The meeting will take place at 6:30 in the City Hall’s council chamber.

The first claim on the council’s agenda — which can be voted on as part of a consent calendar that requires no discussion, unless it is “pulled” for discussion — was filed by Cooke’s father, Alan Cooke, who lives in the Bay Area.

According to the California Department of Justice’s Megan’s Law Web site, Alan Cooke has been convicted of lewd or lascivious crimes against children.

The second claim was filed by San Francisco-based lawyer W. Gordon Kaupp, who is the attorney for Alan Cooke and the estate of Zachary Cooke.

Based upon Schaffner’s agenda summaries provided as part of the agenda packet, the city’s ability to process such claims is limited by its participation in the Redwood Empire Municipal Insurance Fund.

“In order to maintain coverage,” the summary states, “the city has agreed to certain terms that are common in coverage agreements, including giving REMIF the right to: control, investigate, settle or defend any claim that is covered by the coverage agreement.”

As such, Schaffner determined that the proposed claim rejection is in compliance with REMIF’s conditions regarding the handling of such claims.

Included among the actions the council can take are: rejection of the claim; allowance of the claim; allowance of the claim in part, and rejection of it in part, if the claim is deemed valid... .; or rejection or a compromise of the claim if legal liability is disputed.

As reported in July by The Eureka Reporter, Schaffner said the council has 45 days to accept or reject a claim once it is filed. If the claim is rejected, the person filing the claim will have six months to file a lawsuit.

Alan Cooke filed his claim against the city of Eureka on July 9.

On July 5, the second Cooke-related claim on the agenda was filed by Kaupp against numerous law enforcement-related entities and the cities of Arcata, Eureka and Fortuna. In Kaupp’s filing, it states that he is the attorney for Alan Cooke and the estate of Zachary Cooke.

The reason the cities and law enforcement-related agencies are being sued together is because these agencies collaborated to form a task force that had been established to investigate a series of local armed robberies, in which Zachary Cooke was a suspect.

The task force comprised officers from the Eureka, Arcata and Fortuna police departments, Humboldt County Sheriff’s Office, U.S. Marshal’s Office, and the U.S. Bureau of Alcohol, Tobacco and Firearms.

On Jan. 4, task force officers shot and killed Zachary Cooke while he was in a vacant house at 3207 Albee St., in Eureka.

In a report sent last week to law enforcement officials and obtained by The Eureka Reporter, Humboldt County District Attorney Paul Gallegos said the shooting was justified and that the officers who shot and killed Zachary Cooke “acted lawfully and in self-defense, and the use of deadly force was reasonable and justified.”

Additionally, the report said there was “compelling evidence” that law enforcement agents faced a life-threatening situation.

The DA’s report also confirmed that Zachary Cooke had fired one round from a short-barreled, pistol-grip shotgun with two unfired shells in the magazine, and was additionally armed with a fully loaded six-shot revolver.

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

8.06.2007

ER - Victim’s Family Says Gallegos Is Supportive, Attentive

Interesting article. Time tells a different tale. See links at the end.

Victim’s Family Says Gallegos Is Supportive, Attentive
by Christine Bensen The Eureka Reporter 2/26/04

Marie Campbell (left) comforts her best friend Lisa Lawler, who broke down during a news conference Wednesday while talking about her sister whose remains were found in 2002.
In a news conference Wednesday, Eureka resident Lisa Lawler said she supports Humboldt County District Attorney Paul Gallegos who faces a recall election March 2.

“(The purpose of this press conference) is to express our opinion that Paul Gallegos is not being soft on crime,” Lawler said.

Lawler, then Lisa LaDeRoute, was 18 years old when her sister Andrea’s boyfriend John Annibel reported Andrea missing.

Andrea, then 20 years old, had been living with Annibel in Fortuna for two weeks when she disappeared. During the investigation, blood stains were found on the carpet, wall, bedding and mirror in the couple’s apartment.

Carmen Culver, Lawler’s aunt, said the day after Annibel reported her niece missing he moved to Colorado.

Lawler said investigators and law-enforcement officers working on the case told the family and media that there was enough evidence to charge Annibel.

Annibel, currently serving a prison sentence for the 1998 murder of Deborah Sloan, was never charged.

Lawler said for 22 years she had trouble getting in touch with people at the District Attorney’s Office. She said despite calls and certified letters, then District Attorney Terry Farmer never contacted her.

“(We received) no response, not a phone call, nothing,” she said.

Culver said in 2002 LaDeRoute’s remains were found by a land surveyor, at a location in Carlotta where Annibel had worked for 13 years.

Lawler said after her sister’s remains were found she contacted Gallegos and she and other family members met with him in his office.

“This is open communication,” she said.

Lawler said although Gallegos did not know much about the case, Lawler said Gallegos did some research and they have kept in contact. Currently, she is waiting to find out when she can have her sister’s remains so that her family can cremate them.

Although nothing will bring her sister back she appreciates Gallegos’ attentiveness. She said before she did not feel like she was being taken seriously by the District Attorney’s Office.

“I don’t know Paul, I have no feeling about him one way or the other except that he has been open with me,” Lawler said.

She said she feels that the recall committee Safety Yes! is exploiting victims’ families. Lawler said she wants people to realize that Gallegos has to wait for investigations and police reports to file charges and that although charges cannot always be filed, as in the case of her sister’s disappearance and homicide, Gallegos has been supportive of her family.

“If it were your sister or your loved one, you would want Paul,” she said.
***
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