Commentary: Death Penalty Case Weighs on Our System

In Friday's Sacramento Bee is a story about Judge Stephen Mock ordering the death in the killing of a California Highway Patrol Officer in 2005. Judge Mock ordered the death of one of the convicted killers of the officer, a man who is just 22 years old.

I have little sympathy for a person who would kill an officer of the law or frankly anyone else.

And yet, I have long been against the death penalty. I do not believe the state has the right to end another's life. I also do not believe there is a way to apply it fairly across the board and as a result people who lack the means to afford good legal representation systematically receive the death penalty in far higher numbers for similar crimes.

I have barely covered this case but it weighs more heavily on me than most. Perhaps that is because at two separate points in time I was asked to intervene on behalf of the defendant.

The first time occurred over a year and a half ago when the defense was trying to get Judge Mock disqualified.

At the time, Judge Mock was the lead Superior Court Judge in Yolo County. He had the responsibility of assigning cases to judges. He no longer is in that position, it is a position held by Judge Dave Rosenberg.

At the same time, his wife was Chief Deputy District Attorney. It was her job to assign cases to prosecutors.

The Vanguard had covered this issue prior to the December 2006 article and in fact, the relationship between Judge Mock and Ann Hurd seemed problematic in some other cases I was aware.

It would be reported:

"An out-of-county judge, specially appointed to hear the controversy, has already decided in favor of Mock. That judge ruled that though it was a "close call," Mock can remain impartial."

A year and a half later, Judge Mock is signing the order to send an individual to death row. Maybe he was completely fair in the trial, I was not there. The appearance of a conflict here is important though. The people prosecuting this case are the same people that are colleagues and underlings of Judge Mock's wife.

The fact that I provided the defense attorneys with information and witnesses to Judge Mock gives me some connection to this case.

I am a strong believer in transparency in government. I think the fact that Steve Mock is judge in this county means that his wife should not be the chief deputy DA in this county. That is no slam against Ann Hurd, I have seen her in action and she is very good at what she does. But I think for the sake of both of their credibility there needs to be some distance.

Ironically, my indirect involvement in this case did not end there however. I had a second opportunity to intervene in this case a few weeks ago. Apparently Rick Gore was one of the investigators into the case and every case he was involved in is now in some sort of question. In this case, I was unable to help and some time in the future a man will die.

We have a system where the difference between life and death is based on very narrow distinctions and findings of fact. It is based on the ability of lawyers to provide good defense. It is based on the ability of the defendants to pay for these lawyers to provide good defense. It is based on a whole host of facts and matters that should not matter.

The innocence project has freed many people who were wrongly convicted in courts of law. Some of that is based on newly available technology such as DNA testing. But at its core, the reason that innocent people are convicted of crimes is that the justice system is based on the work of human beings and human beings make errors. Not only do they make errors that lead to them committing crimes but they make errors in their attempts to determine who did what and what the appropriate punishment should be for a given crime.

A person who is freed after serving 17 years cannot recoup their 17 years in prison. But at least they can be freed to start a new life, such as it is. You cannot bring back the dead. Perhaps it would be better if we did not have to try.

I have seen very little evidence that the death penalty is a deterrent to future crimes committed by other individuals. I have seen very little evidence that the death penalty works better than life without parole. It would sure make these matters just a little easier.

In the meantime, I will continue to ponder how I played a very small part in a case, that I have no direct knowledge of nor do I know any of the parties.

---Doug Paul Davis reporting

Public Defender Requests Judge Mock be Disqualified from Hearing Murder Case

Saturday's Woodland Daily Democrat reports that the man suspected of killing a retired UC Davis professor will attempt to remove Judge Stephen Mock from hearing further proceedings.

Public defender, Richard Van Zandt incidicated that he intended to make a motion to disqualify Judge Mock, but the Daily Democrat reports that he did not elaborate on the specific reason that he should be disqualified.

However, one easy point of speculation quickly goes to his marriage with Ann Hurd, who works for the District Attorney's Office. Judge Stephen Mock is the lead Superior Court Judge in Yolo County. His wife is Ann Hurd, the Chief Deputy District Attorney. Judge Mock assigns cases to judges while his wife assigns prosecutors to the same cases.

Adding more fuel to that speculation is that this is not the first instance where a defense attorney questioned the ethicacy of Judge Mock presiding over such a case. This follows a high profile murder case involving two men charged with killing a CHP officer that was held up while a court ruled on whether Jude Mock's relationship with the No.2 person in theYolo County District Attorney's office represented an inherent conflict of interest.

On November 7 in our article, "Appearance of a Conflict of Interest" we suggested that this relationship presented at least the appearance of a conflict of interest even if both individuals performed their duties admirably. Others have countered that Judge Mock's positions is an administrative position rather than one of true authority and they suggest that if anything he is more favorable toward defendents than others in his department.

This may in fact be true, although, looking at a few cases, I begin to wonder about that. Particularly his failure to intervene in the Berny case when it was clear that something was amiss with Judge Fall.

Regardless of the propriety, it is becoming increasingly clear that as defense attorney's begin to make an issue of this relationship (at this point I am jumping to the conclusion that this is the reason for the request), the issue becomes less one of principle and more one of practicality.

Can this county afford that this relationship is challenged each and every time Judge Mock presides over a high profile case?

These delays and additional hearings simply add to the growing cost of the criminal justice system. It would seem the best interest of all involved if one of these individuals were transferred to an adjacent county. In the interest of expediency and efficiency of the court system this would seem the easiest solution if someone in the place of power can make it so.

---Doug Paul Davis reporting

Suits Filed Against Yolo Grand Jury Dismissed

The Sacramento Bee reports this morning that a Federal Judge threw out a lawsuit challenging the recruitment and selection process for Yolo County grand juries. Former Director of the Yolo County Housing Authority David Serena had contended that the composition process of the grand jury was discriminatory against Latinos.

Toward that end, Serena and his legal team that included James Hammer and Whitney Leigh, produced statistics that showed a 13.5 percent discrepancy between expected and actual Latino composition.

U.S. District Judge Frank C. Damrell Jr. ruled that the three year time period was not long enough to demonstrate substantial underrepresentation of Latinos. Moreover, they did not have direct evidence of intent to discriminate.

Over the past 10 years, Latinos have only been underrepresented by 6.5 percent which would be equivalent of around one juror on average. This was not enough to demonstrate a violation under the Constitution's equal protection clause.

However, Judge Damrell did say that while he could not consider solely the last three years, he did find the higher disparity in the last three years to be troubling. The Sacramento Bee quotes him as saying "Unaddressed or ignored, this continuing disparity is likely to provide future evidence of systemic underrepresentation of a constitutional dimension."

The defendants in this case were Judges Steve Mock and Thomas Warriner along with Jury Commissioner Robin Weaver.

According to the lawsuit filed, "the lack of specific rules for grand jury selection in Yolo County has left it open to abuse." Serena and his attorneys argued that residents of Latino decent comprise around 26 percent of the population but only 5 to 11 percent of the make up of the grand jury.

While the suit was dismissed, local civil rights groups can take some comfort from the ruling that Yolo County is on notice to improve their record of the racial composition of grand juries. This is a vital link between the citizenry and the justice system.

Unfortunately it appears at this time, that in order for action to be taken the situation must continue for the next few years. That is unfortunate not only for Mr. Serena who is facing criminal prosecution for his role in the Yolo County Housing Authority, but also minorities in this county who seems to have their rights violated on a regular basis through the criminal justice system.

The Judge's ruling gives a reprieve to Judge Mock and Judge Warriner, but they will remain under scrutiny if they do not figure out ways to remedy the situation.

---Doug Paul Davis reporting

Khalid Berny: A Case of Discriminatory Prosecution by the Yolo County District Attorney

On July 26, 2006, Lauren Keene of the Davis Enterprise wrote a story about a Clarksburg farmer who was accused by the Yolo County District Attorney’s office of allowing his goats to roam “at large.” The District Attorney charged Khalid Berny with 170 misdemeanor charges—charges for which he would have faced 60 years in prison for had the District Attorney’s Office not dismissed the charges.

As it turns out, the Davis Enterprise did not do justice to this story. The story that follows comes from an interview the People’s Vanguard of Davis had with Mr. Berny. By far the most impressive thing about this story is that at every step along the way, Mr. Berny provided me with full documentation to authenticate and verify his claims.

Khalid Berny began not as a goat farmer, as the Davis Enterprise suggested, but rather as a fresh fruit and vegetable farmer. Vandals however destroyed about 40 acres of alfalfa on November 24, 2002 with the Sheriff’s office doing little to investigate or prevent this loss of damage. There was also a seizure of horses dating back to May 2003. At which point, Berny went to Europe for three months and returned to a field that could not be harvested.

It was then with the consent of Yolo County Agriculture Commissioner Rick Landon that Berny purchased goats as means for biomass reduction.

On August 31, 2004, Khalid Berny received his first citation for 40 goats being at-large. According to Mr. Berny, “they did not follow the proper procedure established in the Yolo County Code.”

According to Section 1-5.04 of the Yolo County Code:

“The Enforcement Officer shall issue the Responsible Person(s) a Courtesy Notice by service in the manner provided for in section 1-5.05. The Courtesy Notice shall identify the Violation(s) at issue and the steps required for compliance. In addition, the Courtesy Notice shall state that it is being provided as a public service for the purpose of advising the recipient of the requirements of the County Code and the means to achieve prompt compliance. The Courtesy Notice shall also state that compliance is required within fifteen (15) days, unless a shorter compliance deadline is necessary in the judgment of the Enforcement Officer because the violation presents an immediate public health and safety hazard.”

Furthermore, "If the Responsible Person fails to correct the Violation, a subsequent Administrative Citation may be issued for the same Violation. " However, that is only if the owner fails to correct the violation. In this case the prescribed procedure was clearly not followed. There was no courtesy notice, only a citation for 40 misdemeanor counts plus a $102 fine per goat.

On September 16, 2004, Mr. Berny received another citation, this time for 80 goats being at large. And finally on September 25, he received his final ticket, for another 50 goats being at large.

The final violation occurred after an accident with a tomato truck put Mr. Berny in the hospital. “I was rear ended by a tomato truck in front of my ranch on the 17th at 7:10 a.m.” He was taken the hospital and at 10:00, “animal control got a call from another CHP officer stating that my goats are at large and are told that the owner of the goats is in the hospital. They start impounding my goats, drowning 6 in the irrigation canal, killing 2 more in transport to Woodland.” Mr. Berny showed me a picture of the dead goats lying next to the irrigation canal.

At this point, Mr. Berny faced 170 counts of at-large goats, which included a $102 fine per goat and up to 60 years in prison.

It turns out that this is not the usual way for animal control to handle a situation of at-large goats. One of his neighbors in a sworn deposition, for example, stated that his goats had escaped twelve times in the month of June 2004. He got eight calls from animal control and was given no citations from Yolo County.

Another neighbor, in 2001, got a citation for 900 goats being at large. In addition, he failed to appear in court. He received an $81 fine total for his 900 goats being at large (Mr. Berny showed me a copy of the citation) and a $250 fine for the failure to appear. Berny on the other hand, had his fine of $102 per goat plus he faced misdemeanor charges for the violation.

At this point, the FBI was called in to investigate apparently for differential and discriminatory prosecution. (I have a FOIA request into the FBI, but I have not received confirmation on this yet.) At the same time, Mr. Berny filed a lawsuit against the county for harassment and discriminatory prosecution.

Similar to what we saw in the Buzayan case, the District Attorney offered in writing to drop the charges against Mr. Berny, in exchange for Mr. Berny dropping the lawsuit. Judge Mock, who we have pointed out is married to the Chief Deputy District Attorney, was aware of this offer but refused to intervene. Recall that Mock is under fire in another case because of his marriage to the Chief Deputy District Attorney. We ran a couple of stories on the appearance of a conflict of interest, this is the first tangible evidence that that charge may have some merit.

The Deputy District Attorney in this case, Deanna Hayes, was asked by a colleague as to why this case was being pursued, she falsely contended that Mr. Berny’s goats caused tens of thousands of dollars of damage to the adjacent property. A claim, strongly disputed by Mr. Berny’s neighbors. Hayes was also given strict orders from her boss not to drop the charges or settle.

The presiding judge in this case was Judge Fall. Fall made several critical decisions that placed Mr. Berny in deep legal jeopardy. First, he ruled that this was a case of strict liability. According to two legal precedents, in order for at-large livestock to represent criminal negligence, which is the allegation here, the 1922 Poole v. Clover case ruled that the owner needs to know that his livestock is at large and they must do nothing about it. In all three cases, Mr. Berny was not aware his livestock were at large and moreover in the last one, he was in the hospital. A more recent U.S. v. Semenza from 1987 ruled that there must be “intent.” That the owner must “willfully” permit the animals to run at large.

Furthermore, Judge Fall denied Berny a motion for discovery under Murgia that would have presented evidence to show discriminatory enforcement by the District Attorney. Fall would in fact, forbid the use of discriminatory prosecution as any kind of defense.

Defense Attorney Matt Gonzalez (who also represents the Buzayan family among others) at this point appeared willing to concede defeat and prepare for appeal, when suddenly Judge Fall who had played hardball with the defense the entire time, disqualified himself under California Code of Civil Procedure 170.1.

I have been told that this is extremely unusual basically this means that the judge either has “personal knowledge of disputed evidentiary facts concerning the proceeding” or he “believes there is substantial doubts as to his or her capacity to be impartial.” What is striking is the point at which he recused himself. He did not do it at the onset, but rather a fairly late stage in the proceedings.

The new judge was Judge Lebov—a retired Judge appointed by Jerry Brown. Lebov has a strong reputation as a fair-minded judge. He threw out all of Fall’s procedural rulings and forced Deanna Hayes and her boss Steve Mount to begin their prosecution from scratch. They would have to prove strict liability and discriminatory enforcement could be used as a defense.

It was at this point, that Hayes and Mount would formally apologize Mr. Berney and dismiss the charges on July 25, 2006. Mr. Berny on November 2, 2006 filed a lawsuit against the Sheriff’s Department and Animal Control. (It should be noted that animal control is under the auspices of the Yolo County Sheriff’s Department and that Sheriff Ed Prieto signed off on a number of these documents.) He has now added the District Attorney’s Office to the lawsuit for selective and discriminatory prosecution.

---Doug Paul Davis reporting

Appearance of Conflict Grinds CHP Murder Case to a Halt

On November 7, 2006 we reported on the apparent conflict of interest between Judge Stephen Mock and Yolo County Prosecutor Ann Hurd:

"One huge apparent conflict of interest is that Judge Stephen Mock is the lead Superior Court Judge in Yolo County. His wife is Ann Hurd, the Chief Deputy District Attorney. Judge Mock assigns cases to judges while his wife assigns prosecutors to the same cases."

The Sacramento Bee on Friday reports that a death penalty case involving two men charge with killing a CHP officer is on hold while a court decides whether Mock should be removed due to his wife's job.

"An out-of-county judge, specially appointed to hear the controversy, has already decided in favor of Mock. That judge ruled that though it was a "close call," Mock can remain impartial."

Their argument, as we suspected a month ago, centers around whether Judge Mock can separate his professional and private lives. Moreover, the defense argues that it is the "perception of the potential" for partiality that is the central issue.

While these are all issues that we brought up last month, it is unclear whether Hurd serving as Chief Deputy District Attorney in the office rather than the prosecutor in the case that is before Mock will taint the judgement of Mock. If a more general finding comes down, it seems likely that Mock would never be able to preside in a criminal case while his wife is in a leadership position at the District Attorney's Office.

A November 13, 2006 article in the Davis Enterprise suggests that is indeed the issue at stake.

Defense attorney argued that a judge can be disqualified “if the judge or spouse of the judge is a party to the proceeding... It is presumed that Judge Mock's spouse would participate in making policy decisions of the prosecutor's office handling this case, and some observers may reasonably entertain a doubt that the judge will be able remain impartial throughout the course that this case make take,” the motion states.

Mock challenged this charge, noting that District Attorney David Henderson--his wife's boss--has exclusively handled this case.

“... I can say with certainty that my wife has never handled this matter, and that she has not - indeed she cannot - supervise Mr. Henderson inasmuch as she is in a subordinate position to him”

As we have mentioned in the original article, sources claim that Mock and Hurd go to great lengths to act in a professional and ethical manner. However, as the delays in the case illustrates a further problem here--the mere appearance opens the door for the defense to use this as a delaying tactic. In the end, it will cost the county a great deal of time and energy to fight this move by the defense. Is this a worthwhile use of resources, when clearly in the future this issue will come up again?

---Doug Paul Davis reporting

Appearance of a Conflict of Interest

One of the major complaints about the Yolo County Criminal Justice system is the apparent close ties between the District Attorney's Office and the County Judges. Overly prosecutor-friendly judges seems to be common-knowledge in Yolo County.

One huge apparent conflict of interest is that Judge Stephen Mock is the lead Superior Court Judge in Yolo County. His wife is Ann Hurd, the Chief Deputy District Attorney. Judge Mock assigns cases to judges while his wife assigns prosecutors to the same cases.

The outward apparence here is that there is a conflict of interest in this situation. Indeed this has been a source of defense attorney complaints for some time.

Some have suggested the problem is more appearance than fact. They cite that the Judge position as one that is more administrative than a position of power. Moreover, they suggest that Hurd and Mock themselves go to great lengths to be above the board.

Nevertheless, this is a troubling arrangement for a number of reasons.

First, our system is predicated on the notion that we rely on rules and structure to prevent abuse of power rather than the good will of individuals.

Madison at the founding of our nation wrote in Federalist #51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

The basic premise here is that we produce government to control the governed but also the government itself. We do that through structures and laws that do have to rely on the good will and good behavior of individuals. So an apparent conflict of interest that is not abused, is still a conflict of interest. When Mayor Sue Greenwald the other week had an issue come up involving a portion of town where she owned property, she recused herself from offering in the deliberations or the policy decision. She may have indeed acted in good faith had she continued to sit, but the very possibility that interests would conflict necessitated her from recusal.

The second basic problem, if even if Mock act honorably and ethically in his position, the very fact that a Judge would be married to a Deputy DA in the same jurisdiction is a cause for concern. Once again, the suggest has been made that if anything Mock is more pro-defense counsel in his decision, once again, we are relying on the honor of a man rather than leaving no chances. Hon. Mock may indeed be above reproach, but it is the system that we are concerned about.

I think we need a close look at the way our system runs here in Yolo County, there have been a number of stories and incidents that are of concern. This one was brought to my attention by one of the readers of this forum, but there are several others that should be examined as well.

---Doug Paul Davis reporting