November 17th Criminal Trial Motions Hearing

[Original post date: 11/17/09 11:26am PST by Deep Sounding]

There was only one motion heard today by the court regarding the upcoming criminal retrial of william h ayres, for charges relating to his molestation of young male children under his "medical care." The motion was concerning the release of the names and contact information for the jurors (from the prior trial) to the defense attorney so that he can have an opportunity to interview them about their impressions of the trial, which ended in a mistrial.

The decision on the motion was continued until later in the month. The thrust of the discussion revolved around the prevention of the release of personal information about the jurors to the general public, and Judge Freeman provided some sensible possible alternate non-intrusive methods for the defense to consider.

-There was a surprising amount of discussion in the matter. More details to come..(probably LATE tonight though)..-

[Updated: 11/18/09 1:10pm PST by Deep Sounding]

Synopsis of the Defense motion for release of juror personal identifying information (prior to retrial of william hamilton ayres on multiple counts relating to child molestation):

ayres was not present at the hearing. His attorney, Jonathan McDougall filed an executed 977 waiver form with the court. (Waiver to allow defendant to skip showing up at routine facts/law motions, etc. -- Where ever he was, he probably wasn't using his walker. He was spotted in public two or three weeks ago using only his canes.)

The jurors were invited to appear or call a teleconference number for today’s hearing; none were present or on the phone.

Prior to the hearing, the court sent written notices to jurors and alternates asking, or briefing them on the motion, and they were provided the opportunity to respond.  The court received some written responses. These responses were sealed, as the judge indicated that several of the jurors requested continued confidentiality.  The original copies of the responses were handed to the defense and the prosecutor for review, and after review, they were sealed in an envelope immediately to protect any personal information that might be included.

Judge Freeman’s opening comments:
The judge said to McDougall that she had reviewed his papers and stated that she did not “find that you have made prima facie showing.”

She further admonished McDougall:
“You have failed to provide to the court any analysis.” She then listed about 2 cases that she had researched in the matter.
“You have failed to provide to the court any analysis.” She then listed about 2 more cases that she had researched.
“You have failed to cite to court the most recent cases on this issue.” And she proceeded to cite 2 more cases that she had found.

She appeared frustrated that she had had to do all of the necessary research in the matter, and made it sound like McDougall had done very little other than request access.  The judge said: “I don’t know if you’re prepared to respond…” and then discussed the fact that she had been left to do all the legwork.

McDougall’s response:
“The defense was more prepared that should there NOT be opposition by the jurors…. “ McDougall stumbled a bit, and said “The[ DA] had an opportunity to discuss juror deliberations” I wasn’t able to jot down his next statements in full, but basically there were two or three sentences saying that he was hoping to have the same opportunity if there was no objection.

According to McDougall’s statements after reading through the comments, at least a third of the jurors opposed any contact, and only one did not object.

McDougall then stated that he wanted to be able to address the court later with supplemental information, and then he AGAIN pointed out that the prosecutor has had the opportunity to speak with the jurors, and so if the court wanted additional information he’d be willing to provide that.


Judge’s response:
It was “not reasonable for you to assume that there would be no opposition.”  She stated that the court is aware of the number of trials that McDougall has participated in-- both as prosecutor and defense attorney, and that it was simply unreasonable of him to assume that the jurors would want to be contacted, especially in “a case that had Extraordinary public scrutiny, extraordinary press and internet exposure.” In a case in which, because of the internet coverage, the “jury was sequestered to protect the sanctity of deliberation.”


McDougall’s response:
McDougall talked a bit more about not having had the opportunity to talk to the jurors, pointing out that “At the conclusion of the case all but one [of the jurors] were willing to speak to [can’t quite make out who, as he begins mumbling and trailing off at this point...]”


The judge then continued her train of thought:
She talked about section 237 and its application, which has to do with sealing of juror information after a verdict in a trial. Although there was no verdict in this trial, the judge sealed the jury’s personal contact information, in interest of protecting their right to privacy.

She stated that she does not believe that there is threat of harm, but does want to protect their privacy. “Given the Extraordinary public scrutiny and voyeuristic watching this jury during this trial [in a blog] even talking about their facial expressions while eating lunch… “ She stated that the court must protect the jury system and she wants to protect the jurors from “open season” after the conclusion of the trial. She states her primary concern as protecting the juror’s information from release to the public.

She then cited more cases:  and states that in those cases, the courts talk about the defendant having to show jury misconduct, or other similar situations in order to get access to contact information, and that a desire to be better prepared for retrial does not qualify in breaking that anonymity.

The judge then stated that she is “going to grant your request [to do further research/submission.]”

She then stated the obvious solution, which frankly the defense should have thought of beforehand, and even I --not a lick of legal training -- was thinking at the very beginning of the hearing:

Consider asking the court to send a letter with a return postcard to the jurors to see if they’re willing to contact you.  (Thereby completely eliminating the need to release any contact information at all, leaving it up to the discretion of the individual jurors. After all, even if the court releases the information, the defense can’t compel the jurors to discuss anything.)

McDougall’s response was a somewhat happy mash of words that I half couldn’t make out, and mostly seemed irrelevant, basically a happy epiphany.

Judge’s further admonition:  

“You did not have the opportunity to speak with the jurors, but the defense did, and either took advantage of it, or did not.” She also stated that she thought he’d find probably the information that he’d get from the jurors would probably have little significant value to the case anyway.

Continued hearing set for November 30th, 8:45AM  (Yes, 8:45AM)

Prosecutor’s comment:
“Thank you, judge”

I tried not to editorialize TOO much above, so here it is:

On McDougall:

Wow… maybe I was wrong in believing that ayres has tons of money stashed away for excellent defense. On the other hand, maybe it’s all just a game; defense attorney playing dumb, hoping for a sucker punch.  Either way, it’s all around rude to file a motion like that, and leave all the work up to someone else, whether it’s a game or not. What the hell has happened to people that they’re such soul-sapping users? Birds-of-a-feather, I suppose…

On the Judge’s “Extraordinary public scrutiny” statements:

I’d have to vehemently disagree with statements that there was ”Extraordinary press and internet exposure.” In fact,  I certainly would have preferred there to be much more PRESS coverage, and NO or very limited blog coverage.  While it may not be a valid assumption, the PRESS is seen as neutral in their reporting. This blog has an obvious bias, and will always have to contend with the issue of truth and veracity in reporting.

In this case, the print press coverage was minimal, and at times was only based on conversations with prosecution or defense outside of court, not actual reporters in the courtroom. There was not daily coverage by the press. There was virtually NO television coverage, as cameras were barred from the courtroom, and therefore they were uninterested in the story.  While I personally was grateful that there were no cameras in the courtroom, and feel that those victims who testified were probably relieved as well, I DO think that the case deserves sensational public scrutiny:

This animal was a former president of the American Academy of Child and Adolescent Psychiatry; he was lauded by the county and elsewhere as a preeminent practitioner in his field, and specifically as a child and adolescent psychiatrist. He was even the chair of the Work Group on Quality Issues in writing a paper for the Journal of the American Academy of Child & Adolescent Psychiatry called “Practice Parameters for the Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused” which is still considered to be an important guide in the practice, and was even used as a source for expert testimony in his own trial, by experts in his field.  There were several opportunities that the county had over the years to stop this animal from damaging other kids.

Let me repeat: The animal used his position and his profession to gain access to and to molest young males. They county could have stopped this. Because they failed repeatedly, more young children were damaged, quite probably irreparably in many cases.

This case SHOULD be sensational, subject to extraordinary public scrutiny, with detailed proceedings covered every day in the press.  It was not anywhere near this level of coverage.  The public needs to be aware of the methods, the excuses, the incompetent colleagues who cover for him, unwittingly or not, and the county who looks the other way because of the prominence of people in this position. They need to be aware so that they can protect their own kids. Assuming that someone out there is looking out for them is a horrid mistake, and they need to be reminded of this.

As usual, the press has been mostly reactive in this case, when covered at all. There was a small blurb in the San Mateo Daily Journal today about the story. They were not present at the hearing -- they phoned in a question to someone at the DA’s office who was not at the hearing either -- and then wrote up a story. (They did spend some time yesterday watching this blog though.) Not exactly what I would call “extraordinary press.”  I actually like the SM Daily Journal. I just wish I could rely on them to cover the story, rather than the other way around.

I’ve said this before, and I’ll say it again: Before there was blog coverage of this case, I would scrape and scour the internet and news stories to see what was going on, and it would sometimes be days or weeks of stressful watching and waiting before I’d have an update. I know for a fact that there are victims out there who are watching (mostly silently) for some sense of closure… to know that there were others, to know what’s going to happen to the animal. I know that because I was one of them. I wish I was not the one to do this update. Mostly I get criticism and hate for my efforts. I wish the San Mateo Daily Journal or the Chronicle or the Mercury News was there every day printing the important details of the trial, and I could just pick it up, and have some confidence that the next day I would not be left in the dark.

I think that there’s a pervasive undertone that “the public doesn’t need to hear all of this stuff” in San Mateo County, and I think that’s pretty wrong.

There are only a small handful of blogs out there which are covering the trial with any regularity. A couple of them publish articles fairly infrequently, but do a fantastic job when they do. One of those DOES have a fairly wide readership, but mostly NOT in the San Mateo area, I’d guess; and given the frequency of their postings, I’d not readily call that “Extraordinary exposure.” 

Unfortunately,  this blog does not have anywhere close to the readership that the other blog gets, and even with the relatively low readership, the physical location of the coverage is very scattered, with 90% or more of the readers coming from well outside the bay area, so again I’d not call THAT “extraordinary exposure” either, ESPECIALLY on the local level.

I have to admit feeling a bit prideful when I first heard this, but in reality, that was vastly misplaced pride – it simply isn’t “extraordinary exposure.”  I think that it may feel that way, because of the relative proximity of the (majority) of the readers of this blog to the core issues – the professionals involved in the case, the victims and people who know the victims,  and the defense and a small handful of similar-minded perverts searching for child pornography and defending molesters.

I think on this matter, the judge is just plain wrong.

On the judge's “voyeuristic watching this jury” statement:

OK. Probably a valid criticism.

The trial was long and difficult, and the empty void while tensely waiting for results needed to be filled, and it WAS a relief to get those reports about the jury looking happy, or cohesive, but clearly it caused more tension than was intended.

I certainly would NOT encourage any kind of “open season” on any of the jurors, as the judge stated that she was worried about. I have said before that I’m ONLY interested in exposing the offender and those who publicly support him, and only those people, and that’s where I still stand on the issue.

My opinion about the release of juror information:
I think the rules are set up well. I hope the defense takes advantage of the postcard idea, it’s the least intrusive. If the jurors don’t want to talk to the defense, using their personal contact information to hound them won’t gain him anything, and hopefully he’s smart enough to figure that out.  I don’t think the information that he gets is going to be that useful at this point.

If the jurors really want to talk to him, they could probably just call him. They know that he wants to talk to them, and I’d bet he’s got his phone number printed somewhere.  He’d probably even pay for their lunch.I don't know if I'd want to be seen having lunch with him. I suspect that if any of the jurors really had any interest in talking to him, they'd have done so already. I'm betting the well is dry...

On the Hearing in general:
The judge bitch-slapped the defense pretty handily. Ultimately, like everything else we’ve seen, I think she’s going to have to grant him access in one way or another, lest he whine about not being able to put on a good defense.