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As usual, the defense Shyster McDougall has waited until the 11th hour to file a motion to further delay the trial.
This time, the delay doesn't have anything to do with the molester’s faked mental incapacity. In fact, this time the defense Shyster is simply throwing the kitchen sink at the court hoping something will stick.
There’s quite a bit more to the motion to continue than the press has reported so far.
Here’s a copy of McDougall’s “Notice of Motion to Continue” that he filed with the court this week.
Discussion of the filing:
On the whole, McDougall is whining about several unrelated issues:
Issue One: McDougall’s own lack of preparation:
McDougall spends a good chunk of the document talking about preparation. He quotes Penal Code 1050:
“appellate courts have ruled that counsel MUST be given adequate time to properly prepare the defense” and “opportunity to prepare for trial is as fundamental as is the right to counsel.”
McDougall lists ad nauseam all of the stuff he has to read through from the first criminal trial to prepare: in excess of 2,500 pages of transcript; DA discovery materials: 2,600 pages; material witness transcripts, 5,000 pages; Civil deposition transcripts, 3,000 pages; Medical records; preliminary hearing transcripts; etc, etc, etc...
Here’s a little timeline to help jog everyone’s memory:
July 27, 2009: The first criminal trial ends in mistrial. Doron Weinberg was the defense attorney.
September 11, 2009: Jonathan McDougall takes over as attorney, slated to represent ayres in the upcoming criminal re-trial. In court that day, McDougall was already posturing for his first delay, whining about the six boxes of material relating to the trial that his investigator had picked up.
(Pro Tip for the judge: check the transcript… you’ll find the box count there.)
McDougall was asking for an April trial date. The entire thrust of his argument was that he needed that time to go over all of the material from the first trial. -- Yes… ALL of that SAME material that he is NOW complaining that he still -- THREE and A HALF FUCKING YEARS LATER --still -- has not had time to review.
Important note: On October 9, 2009, The judge grudgingly granted the delayed April 12, 2010 Trial date that McDougall wanted -- exclusively so that he could have the time that he said he needed to prepare.
On March 17, 2010, Only one month before the start of trial, McDougall let the court know that he thought ayres was mentally incompetent. McDougall had ostensibly been preparing for the trial for SIX MONTHS by this time.
McDougall is already prepared. The whole line of argument is pathetic.
Significant Information provided by the defense while whining about needing more time: McDougall confirms for us that there are four civil suits involving ayres, and 40 potential witnesses, including 25 complaining witnesses (victims willing to testify).
Issue Two: Lack of access to new witnesses for the prosecution (Discovery):
McDougall claims that the prosecution notified him only days ago that there are three or maybe four more expert witnesses that they intend to call. He claims that they have not told him who the witnesses are, given them a CV for the witnesses, contact information, or even what their basis of testimony is.
If that’s true, then shame on the DA for causing a delay.
Frankly, with all of the deception that has apparently been coming from the defense table (Note: Read this article (pdf) about McDougall’s erroneous time-served calculation in another case) , I don’t believe him, and neither should the judge.
Issue Three: Fitness of the Prosecutor:
McDougall cites an alleged California Bar investigation against the prosecutor, including claims from the victims of this case. McDougall feels that this investigation should result in successful motion to recuse McKowan, and/or a change of venue for the case, and he wants all of this litigated before trial can start.
In general, many of us have felt that a change of venue would be appropriate given the fact that the defendant served on commissions with, and worked as a contractor for various departments in the county, many of whom are still active, Including Jim Fox, Steve Wagstaffe, Richard Gordon, and Judge Marta Diaz -- who also appointed Stuart Forrest (pdf) – Forrest worked in the same juvenile system for many years at the same time that ayres contracted there as a low bidder, by the way…
HOWEVER, having said that…
McDougall doesn't really want a change of venue. The current group are doing a pretty good job of avoiding the embarrassment of one of their trusted heroes being convicted. What McDougall really wants is the time that it takes to have the hearing about a change of venue. McDougall is surely satisfied that the DA will not adequately complete the prosecution of justice in the ayres matter.
Issue Four: Allegations that the prosecutor has identified witnesses misconduct during the first trial:
McDougall says that he has a “good faith belief” that the Bar investigation includes information that McKowan has provided to the Bar investigators that shows that some of the potential witnesses lied about circumstances that occurred between them and McKowan, and that this will help McDougall impeach these witnesses.
The prosecutor is also said (by McDougall) to have information that one of the witnesses perjured himself on the stand -- He claims that the witness said that he didn't file a police report in 1992, but that he actually did.
Two points: we suspect that he’s mixing up two different witnesses. however, even if it were true, the victim was about 9 years old at the time. I think that if a 9 year old told some stuff to a policeman, he wouldn't necessarily know whether a report was actually filed or not, especially as he got older, and realized that it’s entirely possible to talk to the police without filing an official report…
Whatever you can do to attack a witness, I suppose… Wonder how McDougall will justify such morally bankrupt behavior to his children when they begin to realize what a poor human being he is?
Further, McDougall claims that McKowan has information about “manipulative actions of a potential witness on the case – Victoria Balfour.” I'm sure McKowan has plenty of nasty stuff to say about Balfour. That doesn't make these accusations accurate or even legally problematic. And I wish someone would tell me how the hell Balfour is a potential witness.
But here’s the MOST IMPORTANT point about the whole Bar investigation:
The content and proceedings are supposed to be SECRET in order to protect the complainants. In fact, certain aspects of any Bar investigations are NEVER supposed to be revealed in order to protect the complainants.
And yet McDougall spends a great deal of his submission talking about what he believes “in good faith” is contained in the specifics of the investigation, and he further states that these are things that McKowan has stated with respect to the investigation.
This means that somehow the content of a Bar investigation has been made illicitly available, putting potential witnesses at risk. There are only a few possibilities here:
1) The Bar investigator or their staff have released the information inappropriately (not likely) or
2) The ayres defense has used some nefarious means to acquire the information. (probably not) or
3) The information was provided to the defense by McKowan herself, or other witnesses against McKowan or other people being investigated.
4) The information that McDougall claims that prosecutor McKowan has about witness misconduct in the first trial is entirely made up by McDougall in order to go on this lengthy fishing expedition to delay trial further.
McDougall’s “good faith belief” may be simply that: he provides no evidence in his filing that McKowan even knows that he’s made these claims, nor does he provide evidence that the claims came from McKowan. He may simply be stating that he has a belief that there may be proof of witness misconduct in the Bar investigation reports.
I’ll speak more about this when I discuss the Mercury News article below.
I can’t think of any other possibilities. There may be some. Whatever the situation, the defense has access to information that should be private. Lesson Learned: Don’t EVER complain to authorities if somebody does something wrong.
In all McDougall argues that McKowan will make an excellent witness for the defense, and therefore can’t possibly be the prosecutor.
Whatevs.
Issue Five: The ability to get an unbiased jury:
McDougall has hired “Trial Innovations” to see how the “extensive media coverage” has tainted the jury pool. They’re not done yet, and they need more time, adding to the potential delay. Boo Hoo.
Extensive media coverage my ass… there is minimal news coverage. McDougall talks about television coverage – I’d be surprised if there were more than 10 or 15 minutes of material broadcasted TOTAL since 2007. They dance around delicately about the topic of online coverage.
Nobody has asked me for metrics on the blog.
I’d really like to see that report when it comes out. If the report says anything other than “little to no jury bias” based on press/television/internet coverage , I’ll be shocked, and wondering about the competence of the firm McDougall hired. (Well -- maybe not, the guy is a “Social Psychologist” from the University of Reno – I bet ayres is shitting his pants having to pay a psychologist -- ‘nuff said.)
Issue Six: McDougall’s own scheduling gall:
The Shyster has scheduled a two week felony robbery assault trial to start on the same day that the ayres trial was already scheduled to start, and is currently in the process of racking up civilian witnesses to testify.
Yes. He actually puts that in the document as an argument for delay.
One final galling note:
McDougall states this in his brief:
The complaining witnesses waited over (15) years to disclose the alleged acts, and the case itself was delayed over (18) months since the filing of the criminal complaint. The prosecution and the witnesses would not suffer a substantial hardship with the delay.
In the Press:
The Mercury News story (pdf) was poorly written, resulting in a very problematic article...
Here’s the article’s main flaw:
Almost the entire content of the article was taken from the court submission discussed above, but the article is written as if there is some active dialog between the defense and the prosecution.
Some of the quotes attributed to McDougall are listed specifically as having been from the court submission, But the writing style makes other McDougall quotes appear to have been statements made directly to the press.
Further, the journalist inserts reaction quotes from the prosecution, making the whole piece seem as if McDougall and McKowan are in dialog about problematic witnesses in the first trial, but there is no actual indication anywhere that this is the case.
In fact if you carefully read the quotes from the prosecutor, you’ll find that there is no actual conversation, and indeed they are not related. This is a problem because a reader who has not first read the court filing will easily assume that the two sides have had discussion about witnesses committing misconduct. While it’s possible that they HAVE had this conversation, the article does not clarify this. Further, the article seems to indicate that the prosecutor DID speak to the reporter about one of the witnesses lying on the stand, but the article does a poor job clarifying the nature or context of the comment.
Again, the net effect that the article creates is that the Bar investigation is full of gritty details about salacious victim/witness conduct on the witness stand during the first trial; while in reality this is all just stuff that McDougall is just shot-gunning under the umbrella of “good faith belief” in hope that he will create more delay for his client.
Other points about the article:
The paper states that the Bar “probe revealed that some witnesses from the Ayres case had made false accusations against McKowan”
What is the reporter’s source for this information? Sure, McDougall implies that it’s so in his court brief under his “good faith belief,” but did he actually tell the paper this? Did the paper actually see the secret report? Is there any source at all? If the paper is going to state as a fact that the “probe revealed” anything at all, then I’d expect them to provide some kind of source.
The paper doesn't even mention the most galling item presented by McDougall: That he’s gone ahead and scheduled another trial right on top of the ayres trial. You'd think that the paper would have noted this in passing.
Want a first hand peek at bias? The copy of the document submitted by McDougall that we linked to above was provided by the newspaper.
Now go back and look at it.
Look at the portions of the document that were underlined by the reporter. Look at the section that has a big bold star by it.
The press has done a really crappy job covering this farce of a situation. That's because child molestation doesn't sell newspapers. But interpersonal drama does.
You'll note from Balfour's quotes that she doesn't play that game.
What did we learn?
This whole filing really just cements suspicions that both the defense and the DA’s office are colluding to wait this out until ayres finally kicks the bucket. Neither side wants justice for the victims:
"If I were the defense, I'd want us off the case too," said Karen Guidotti, the chief deputy district attorney. "We're committed in seeking justice for Dr. Ayres."
Final note: What does that nebulous, unrelated picture up top have to do with the ayres child molestation trial, you ask? Exactly.
The wind began to switch / The house, to pitch / And suddenly the hinges started to unhitch...
william hamilton ayres was arrested on April 5, 2007 on charges relating to his molestation of many young boys while he was alleging to provide psychiatric care to private patients as well as referrals for evaluation from the juvenile court system in San Mateo County. ayres has been delaying his way through the system free from custody until this latest gambit to skirt prosecution by playing demented for the courts. ayres is currently under the conservatorship of his daughter Barbara Ayres of Sacramento, CA.
ayres has had significant interaction over the years with local politicians on boards like the "Children and Families First Commission," including the DA who was serving when prosecution began Jim Fox and Assemblyman Rich Gordon. In fact, Gordon nominated ayres for a lifetime achievement award for his "Tireless effort to improve the lives of children." ayres has also been vocally supported during his criminal trial by local head-shrinkers like Bart Blinder, Etta Bryant, Mel Blaustein, Harry Coren, Tom Ciesla, Robert Kimmich, Larry Lurie, Maria Lymberis, Richard Shadoan, Captane Thomson, and Harold Wallach.
