Thursday, April 18, 2013

Motion to Quash: Granted!

April 18, 2013 Hearing: Motion to Quash Subpoena: Granted!

Defense Shyster McDougall was denied access to the State Bar complaint against the prosecutor and her response. While it is a good ruling, from a good of the public point of view, it does not move the case anywhere near a change of venue. Remember that while the defense Shyster argues that he wants a change of venue and prosecution, this is not what he really wants... he's after the delay only.

Hearing on April 18, 2013: State Bar Motion to Quash McDougall Subpoena:

Attorneys were in court today to argue motions in the criminal child molestation trial of alleged psychiatrist william hamilton ayres, accused of molesting scores of young boys.

State Bar Attorney Mark Torres-Gil was in court to quash defense Shyster McDougall’s subpoena for information in the complaint and disciplinary finding against the prosecutor in the ayres case.

Positions had been submitted prior to the hearing, and Torres-Gil’s opening statement was brief and succinct:

He states that the law demonstrates that the defense has no right to pre-trial discovery from the privileged information related to the Bar complaint, specifically but not limited to use for the purpose of attacking the credibility of witnesses, and in light of that, his motion to quash should be granted.

McDougall's folly:

McDougall states that he seeks only narrow and specific information about the complaint against McKowan.

He says he’s “not on a fishing expedition.”

He wants access to the submitted complaint and all related exhibits, and the prosecutor’s response “only.”

He’s not interested in the findings or disciplinary action.

Specifically he says that the prosecutor has indicated that witnesses were corrupted and therefore removed before the start of the first criminal trial (by the complainant) and that witnesses were corrupted at trial and after trial, and he want access to that information.

McDougal states that because the complainant and McKowan have spoken publicly about the complaint, he should be granted subpoena access to the information.

Judge Freeman's Ruling:

Freeman spoke a large about the integrity of the Bar complaint process, and specifically she spoke about protection of the public interest. She stated that McDougall has failed to identify any public interest in the release of this information.

In detail, judge Freeman explained that law is there to protect the interest of the public --  that it would not be in the public interest if a future complainant (in any matter) was afraid to complain to the Bar about an attorney a knowing that their compliant could be made public against their will, and having no say in the matter. That the complainant in THIS case may or may not be willing to expose their complaint is irrelevant.

The judge stated that the Bar is not a prosecuting agency, and that the complaint is not related to the prosecutor’s prosecution of the ayres case itself. The material collected by the State Bar qualify as privileged information under the business and professions code, and this is upheld persuasively by several cases, including cases in Superior court, Supreme Court, etc…)

Freeman stated that at this time the defense has no right to pre-trial discovery in this matter, and the Motion to Quash was granted. (And again the decision was backed by a litany of court cases.)

Freeman told McDougall that it doesn't mean that he can’t make a similar motion once the trial is underway (and she emphasized: “which it very soon will be…”) and that it might be that the matter could be heard In-camera (a private hearing, held outside of pubic view), even by another judge possibly, during the trial.

However, at this time defense does not have right to pre-trial discovery.

Motion to quash subpoena is granted. 

The judge presented a specific example of precisely why this kind of ruling is imperative:

Freeman explained that an initial witness list is broad so that jurors can identify if they know any of the individuals (for example). But actual witness lists are a subset of that list once trial gets underway.

She said that she "doesn't know what will happen in the upcoming trial, but she does know what happened in the first trial":

Freeman noted that during the first criminal trial, when the witness list was presented to court, on the first day of trial, the witness list included Ms. Balfour, with no specifics about Balfour provided to the court, and then she was never called as a witness in the case, but her name was left on the witness list.

Freeman indicated that it is best to wait to determine whether a credibility or impeachment issue actually arises in the trial, and THEN open privileged material.  The court causes harm when it exposes and impeaches an individual, and then the need for it -- the impeachment value -- never arises -- (Which, I might add, is what BOTH sides seemed to be trying to do to Balfour during the first trial -- in fact Freeman indicated that the court knows more now about Balfour than the court really needs to know.)

It sounds like Freeman was subtly arguing that the court and attorneys should be very focused on the criminal matter, not worked up trying to involve Balfour, unless there is impeachment (or other) value -- and as the judge indicated… it didn't turn out that there was impeachment value last time.  I wouldn't be surprised if the subtlety was lost on two thirds of the attorneys present. Perhaps the judge would be better served poking them with a sharp stick:  


Having completed the ruling, the judge and attorneys started to discuss “scheduling issues” and at this point, the Mercury News reporter stumbled into the courtroom. The group decided to discuss the scheduling issues in chambers.  So there are likely to be further hearings and changes to court dates coming. We'll post any changes on our "ayres' Court Dates" tab as we find out about them.

Shyster McDougall’s Stumbley-Bumbley:

McDougall persisted in stating that the DA submitted responses to the Bar complaint. The Judge yet again admonished him to be very clear that he means prosecutor McKowan, not District Attorney Wagstaffe or his office.

After the Judge talked about the possibility of In-camera review at a later date, he immediately reacted like a nervous dog with questions about contacting another judge, etc… Freeman admonished him that while he would be free to file motion at a later date, SHE would decide if and when it was necessary to have an In-camera review, and would assign another judge if SHE deemed necessary.

Dude really wants to get in Judge's chambers...

A Final Note:

Prior to the start of the hearing, prosecutor McKowan was discussing additional potential witnesses with McDougall. She mentioned that she had found a doctor who had written about doctor Albert Solnit.

Solnit was the doctor that ayres was calling Al Songden during the criminal trial, and who, ayres claimed,  instructed students (ayres, at the time) to give physical exams and not to use gloves while doing it.

It turns out that Solnit was a bit of a celebrity in the psychiatrist training world, apparently, and even though he is deceased, it appears that there were some books written about him, and his methods. The doctor that McKowan was talking to told her that he'd let her borrow a few of the books which indicate that Solnit trained students NOT to do medical exams.

What a SHOCK.  

OK... Not a shock. Read Here. And Here.

Mind you -- Both sides have made statements of puff-uppery before and after public court hearings that are "hush-hush", but actually meant to be "leaked" to show prowess and cleverness. Most times we don't print these rumors, but they always appear a day or so later in the press attributed directly to the attorney, and often they are of little consequence to the trial.

So don't bank on this information appearing at trial.

An Update:

Note that as of 4/19/2013, there is a new article in the San Mateo Daily Journal (pdf) stating that DA Wagstaffe intends to add former deputy district attorney Al Giannini as second chair to prosecutor Melissa McKowan. (Note that SM Daily Journal continues to run the crazy/frail and incorrectly representative photo of ayres.)

Interesting. Wagstaffe wants Giannini for his "his experience trying “complicated and high-profile” felonies and in jury selection."

According to the "First Annual Report: Preventable Error —Prosecutorial Misconduct in California 2010", in case Ricardo v. Rardin, 189 F.3d 474 (9th Cir. 1999): The California Appellate Court reversed the murder conviction of Leonard Ricardo because Giannini engaged in discriminatory jury selection. (Among other overturned convictions.)



  1. Judge Freeman is incorrect:

    The court CAUSES HARM when it shields from the public that a prosecutor has lied over and over to crime victims their families and other prosecution witnesses, and made up false accusations about them.

    Release the Bar complaints.

    Remove the prosecutor from this case. Get this case the hell out of San Mateo County, where both Judges Grandsaert and Foiles prosecuted juveniles who were evaluated and in some cases sexually assaulted by Ayres.

    1. I think that Freeman was mindful of the fact that Balfour has made the complaint public already. In prior hearings, the judge told McDougall that the information (including McKowan's statements) were available on this and other internet resources, and that she wouldn't force McKowan to provide that information to McDougall... that he could easily just go get it himself, as it's publicly available.

      Freeman upheld the integrity (if you want to call it that) of the Bar process while knowing that the information is out there.

      Also very important to note:

      What McDougall wants is to impeach witnesses against ayres and to DELAY. He does NOT want a change of venue.

      Although McDougall is making motions that would appear to be aligned with change of venue (something that many of us think would be best) he doesn't actually want a change of venue, He's been beating the DA all along. He wants to continue this trend.

      Another point of interest: On a couple of occasions in yesterday's hearing, McDougall acknowledged that he was not bringing up issues that the Judge had asked him not to. I don't think that change of venue is actually going to be argued by McDougall, and in any case, there are aspects that are being handled privately and outside the scrutiny of the public.

      Not surprising, I suppose.

  2. So Wagstaffe wants to bring in a prosecutor cited as the worst offender of prosecutorial misconduct by the Northern California Innocence Project, to assist a prosecutor who has just been disciplined for misconduct by the California Bar?

    Wagstaffe REALLY cares about ethics, doesn't he.

    From the 2010 report on Prosecutorial Misconduct in California by the Northern California Innocence Project:

    "Some prosecutors with previous multiple findings of misconduct added to their totals in 2010, while other prosecutors became multiple offenders with findings of misconduct in 2010. They include:

    * San Mateo deputy district attorney Alfred Giannini was cited for misconduct that led to the setting aside of a conviction - the third case where his conduct has led to a reversal or a mistrial since 1999."

  3. See Page 13 in the Northern California Innocence Project's report, "Preventable Error- Prosecutorial Misconduct in California 2010:

    Some prosecutors with previous multiple findings of misconduct added to their totals in 2010, while other prosecutors became multiple offenders with findings of misconduct in 2010. They include:

    ■ San Mateo deputy district attorney Alfred Giannini was cited for misconduct that led to the setting aside of a conviction—the third case where his conduct has led to a reversal or a mistrial since 1999. In San Francisco County in December, a judge ordered a new trial for Caramad Conley, convicted in 1994 of murder and sentenced to life in prison.38 Superior Court Judge Marla Miller found that the prosecution had failed to disclose to the defense evidence of payments to a police informant. Giannini, the prosecutor in the case and then a San Francisco deputy district attorney, has denied he knew about the payments. Former police chief Earl Sanders has contended he informed Giannini. In 1999, the California Appellate Court reversed the murder conviction of Leonard Ricardo because Giannini engaged in discriminatory jury selection.39 In 2004, San Mateo County Superior Court Judge Stephen Hall granted a mistrial in a quadruple murder case after finding that Giannini had failed to disclose evidence to defense attorneys.40


  4. From Mercury News story, 4/16/11: "Report Finds Prosecutorial Misconduct in Bay Area"

    "But critics, including some prosecutors named in the study, claim the Innocence Project fails to carefully research the cases in its haste to skewer deputy district attorneys.

    "Like Holocaust deniers and people who believe we never went to the moon, they have an agenda, and no fact is ever going to get in their way,'' said San Mateo County prosecutor Alfred Giannini, who the study describes as a "multiple offender.''

    Giannini was cited last year for misconduct in a murder trial that led to the conviction being set aside, according to the study. It was the third case in which courts have found his conduct has led to a reversal or mistrial since 1999. He disputes either
    the courts' findings in all three cases or the Innocence Project's summary of those opinions."

    Sounds just like his old boss, DA Wagstaffe, whose failure to admit his mistakes has gotten him into trouble.

  5. Anyone notice that there is an uncanny resemblance between Wagstaffe and Ayres in those photos in the Daily Journal story?

  6. I wonder if McKowan isn't just stupid and doing CYA maneuvers & not malicious at all.
    By adding in another proven incompetent DA, Wagstaff is showing his true colors.

    And ICK! dead on comparison of the two photos, Wag's a younger clean shaven version with the same dead/deviant eyes.

    1. McKowan told victims and families that Balfour was working for the Defense. (She was NOT.) McKowan may have been frustrated with Balfour, but that kind of behavior is not simply incompetent.

      I'd say it falls within the "malicious" range of behavior.

    2. It was a harmless meandering thought. I will concede to greater experience only adding that the behaviors you describe, (I agree are malicious) can be the result of the defensiveness I posited even if one agrees they are malicious in themselves.
      My own abusers used such defense tactics to prevent me from being listened to at the time and since I remembered it in the last few years and have tried to get somoene to investigate. It is an old and common tactic that is used by all guilty people. I was even subjected to the tactic by a prosecutor I reported to so that he did not have to open that old can of worms. He sent aremed police to my home several thousand miles away to stop me from calling him and insisting on an investigation. In my case imaginings about money and liability seems to be the controlling factor as well.

  7. Regarding the smdailyjournal article, DA wants just-retired prosecutor back for Ayres trial, by Michele Durand:

    This reader's comments (excerpted below) interest me:

    "[The child molester] ... is likely incapable of clearly assisting counsel."

    On what basis does the reader make this assumption? The child molester is, and has always been, mentally alert, sharp, and manipulative.

    The reader continues:

    "I would argue that [the child molester] does not represent an immediate danger to the public or himself ..."

    What did the molester do last summer to the developmentally disabled man in Napa State Hospital, then?

    What does the reader gain by defending the child molester? I'd guess that the child molester would never stick his neck out to defend anybody.

    * * *

    Without Conscience, by Robert Hare, provides a good primer on psychopathy. Snakes in Suits, Hare's follow-up book, is also good.

    1. Jack Kirkpatrick is a news gadfly. He has an (usually inept) opinion about everything, and what he's posting is from a template that's been in use for a few years, so, while he's claimed on other occasions that he feels that the grooming incident at Napa State qualifies as danger to public, he never reads his template, and probably doesn't realize that he's contradicted himself (yet again)

      Jack worked in probation, so probably knows all of these molesters personally, and has mostly come to ayres' defense over the years, although this has tempered a bit as the case becomes more ridiculous.

      Also he's suffering ALS, and is very sympathetic to aging issues, and is afraid that he will be mistreated, and he thinks that it's cruel to be prosecuting an old man.

      He's just a confused old fool.

  8. Kathleen Ridolfi, head of the Northern California Innocence Project and whose report singled out San Mateo prosecutor Giannini as one of the worst offenders of prosecutorial misconduct in San Mateo County, has passed on the information about Wagstaffe trying to rehire Giannini for the Ayres case, to reporter Tracey Kaplan at the Mercury News.

    Bringing in Al Giannini, who has seen at least three cases of his reversed since 2009 because of misconduct, may be yet another ploy by DA Wagstaffe to keep Ayres out of prison.

    Think of the lawsuits against the County if there is a conviction. This case has dragged on for six years- because of incompetence and unethical behavior by the prosecutor and by Wagstaffe's refusal to do anything about it.

    In the United States, every other pedophile doctor in the last decade has been convicted in LESS THAN A YEAR after the arrest. Of course, those pedophile doctors didn't do work for their local district attorney and judges, as Ayres did for the San Mateo DA's office, San Mateo judges, probation and juvenile hall.

  9. Looks like the Board of Supervisors is going to vote "yes" on Giannini. The DA is also adding a third prosecutor, a male, to the Ayres case.