Thursday, December 13, 2007

Atkins seeks dismissal of preliminary hearing findings


Deputy Public Defender Karen Atkins filed a 75-page motion Wednesday in Superior Court that calls for the dismissal of Judge Brian Hill’s August decision that ordered a trial be held for a 14-year-old boy charged with murder.
Immediately after Hill ruled there was sufficient evidence to hold a trial, Atkins vowed to file a motion to dismiss his findings, which were based on a lengthy, 12-day preliminary hearing that Atkins said she believed ended too abruptly.

“It’s very unfortunate that toward the end, in an effort to rush through it, some mistakes were made,” Atkins told the Daily Sound yesterday. “[Hill] basically prevented me from arguing the case at the end.”
Atkins’ client, Ricardo “Ricky” Juarez has been charged with murdering 15-year-old Luis Angel Linares during a March 14 gang brawl at the intersection of State and Carrillo Streets. Juarez has pleaded innocent to the charge.
At the heart of Atkins’ motion to dismiss, she said, is an interrogation of Juarez by Santa Barbara Police Det. Gary Segal, during which Juarez makes a confession.
At the beginning of the preliminary hearing, Atkins told Hill she wanted to watch the interrogation tape in court and question Segal concurrently, or shortly afterwards.
But as the preliminary hearing dragged on, Hill announced that he planned to watch the tape from his home. Shortly after doing so, Hill made his ruling despite staunch protest from Atkins.
“He relied on information that he got in the interrogation that he got outside of court,” Atkins said. “That raises constitutional problems for my client’s Sixth Amendment rights.”
Atkins acknowledged that during a preliminary hearing, the lines that define the weight of constitutional rights aren’t as stringent as they are during a trial, but are there none-the-less.
“If you are having a preliminary hearing it has to encompass constitutional rights,” she said.
One of those rights in particular that Atkins said she feels was abandoned by Hill’s ruling was not allowing her and her client to be present when the interrogation tape was viewed and subsequent opinions were made based on its content.
Atkins has been preparing the motion for dismissal for the past 60 days, since the 2,000-page transcript of the preliminary hearing was made available.
Senior Deputy District Attorney Hilary Dozer, the prosecutor in the case, said he had not yet had a chance to read Atkins’ entire motion as of yesterday, and is not surprised it was filed.
“I fully expected it and look forward to litigating it,” Dozer said. “I do know from the portion that I read, the defense is arguing that the judge erred in listening to the confession statement by the defendant from home.”
Dozer said in a case of this magnitude it’s common for defense counsel to file for a dismissal of preliminary hearing findings. While full dismissal may or may not occur, Dozer said the formal process of bringing the defense’s concerns to the table leaves them open for possible appeal at a later date.
If Atkins’ motion hadn’t been filed in a timely manner, Dozer said ability of the defense to file later appeals on the issues raised would not be possible.
“[Defense counsels] do it sometimes because the defense believes error actually took place, or they do it to preserve any issues on appeal that have to be preserved procedurally.”
Because the motion alleges Hill made errors, a hearing to discuss the motion for dismissal has been scheduled for Jan. 2 and will be heard by Judge Frank Ochoa.
If the judge rules against Atkins, Dozer said she could appeal the decision before an appellate court. But if Ochoa rules in favor of dismissal, Dozer said it is generally more difficult for the prosecution to appeal.

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