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 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:
IT'S BEEN SIX FUCKING YEARS! GET YOUR FUCKING THUMB OUT OF YOUR FUCKING ASSES.
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.
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.)