Judge stays on Allen's trial

It's a case more than four years in the making, with five trial dates and four lead defense attorneys at the helm.

But the trial of a man suspected of killing a California Highway Patrol officer in Salida averted one more delay Tuesday when a Sacramento judge refused to take himself off the death penalty case.

Judge Patrick Marlette denied San Francisco defense attorney John R. Grele's challenge seeking to disqualify him on grounds that Marlette would not give Columbus Allen Jr. II a fair trial.

Allen is charged with killing CHP officer Earl Scott in February 2006. His trial, set to begin July 26, was sent to Sacramento because of extensive publicity in Modesto. Marlette was assigned to the Allen case in October.

Grele did not give a reason when he filed the challenge last week against Marlette, but he doesn't have to. State law gives defense attorneys and prosecutors the right to file one affidavit per case claiming prejudice by a judge.

It was for this reason Marlette struck down Grele's motion in a written ruling released Tuesday. Marlette said Allen had used his one chance to switch judges when the case was taken from Stanislaus County Superior Court Judge Donald Shaver in 2006.

"Defendant had one opportunity to bring a ... challenge to a judge assigned to this case," Marlette wrote. "(The) defendant used that opportunity."

Grele did not return a call seeking comment Tuesday.

Allen's case has been plagued by delays, including revolving attorneys, the change of venue and multiple trial dates.

Last month, Grele asked to withdraw from representing Allen after nearly two years heading his defense. He said the case had become "too difficult" for his family, which includes three young children. Grele wrote that the extended absences he anticipates to defend Allen and a lack of funding for Allen's defense have generated "additional stress."

Stanislaus County Superior Court Judge Hurl Johnson, who is handling pre-trial motions, said Grele must stay on the case.

Allen has made several attempts to replace his lawyers.

He first sought to have the public defender's office removed from his case. A judge turned Allen down, but the office eventually declared a conflict of interest and opted out. The scenario repeated itself with a firm that is retained to handle cases the public defender's office cannot.

Modesto defense attorney Ramon Magaña was the third attorney to take the case, but Allen persuaded Johnson to release him. Grele, who had signed on to help Magaña with death penalty issues, then became the lead attorney.

Allen, 34, of Stockton, is charged with killing Scott about 4:40 a.m. Feb. 17, 2006. The slain officer was found at the edge of northbound Highway 99, south of Hammett Road near Salida, holding registration papers for a Nissan Maxima registered to Allen's wife, Bertera.

The district attorney's office has charged Allen with first-degree murder and three special circumstances that could lead to the death penalty.

He is being held without bail at the jail in downtown Modesto.

Bee staff writer Merrill Balassone can be reached at mbalassone@modbee.com or 578-2337.