State appellate court delays Allen trial

A state appeals court halted the trial of Columbus Allen Jr. II on Monday afternoon, just hours after a Stanislaus County judge cleared the way for the murder case against Allen to begin today in Sacramento.

The 5th District Court of Appeal in Fresno stayed all proceedings, including pretrial motions, while it reviews defense attorney John R. Grele's petition to remove Sacramento County Superior Court Judge Patrick Marlette, picked to preside over the trial.

The appellate court gave no timetable for when it would release its ruling.

"It's a bit frustrating to feel that you're ready to move on and you kind of get another hurdle thrown up in front of you," Stanislaus County Assistant District Attorney Carol Shipley said.

But, she noted, "It's better to litigate this issue before the trial starts."

Grele declined to comment Monday night.

Earlier Monday, Stanislaus County Superior Court Judge Hurl Johnson said Allen's trial should proceed despite Grele's attempt to delay it and move it closer to his Bay Area law practice because of his mounting family problems.

"People's memories are beginning to fade on this case," Johnson said of potential witnesses. "It's time for this case to get to trial."

Grele asked Johnson to reconsider Sacramento as the venue to try Allen, who is accused of killing California Highway Patrol officer Earl Scott in February 2006 during a traffic stop near Salida.

Grele, who is from San Francisco, said keeping the case in Sacramento will prevent him from spending enough time with his three young children. Grele said his wife recently filed for divorce and he is seeking joint custody of their children.

"What the court is asking me to do is choose between my children ..." Grele said, before Johnson cut him off.

"I'm not letting you out of this case," Johnson said. "We're done."

Grele expressed concern about coverage of the case by Sacramento TV stations and the effect on a fair trial for Allen. Johnson said that was an issue for Marlette to decide.

Grele and co-counsel Martin Sabelli also sought to postpone the trial because of delays in getting evidence, which Johnson denied.

"We're not ready to proceed," Sabelli said. "Obviously, it has a profound effect on the ability of the defense to prepare."

At issue is potential evidence obtained this week by the defense -- including data on cell phone tower coverage areas that prosecutors say place Allen in Manteca at 4:42 a.m. the morning of Scott's shooting, despite his girlfriend's contention Allen was at her south Modesto home until 5 a.m.

"It's not a small deal," Sabelli said. "That is the central piece of evidence in this case."

The defense said it has not been provided with case studies used by a prosecution expert to make a finding about the gunshot residue found on Allen and the lack of such residue in what prosecutors call the getaway car.

"The effect is to trample on Mr. Allen's ... rights," Sabelli said. "It's just not fair."

Sabelli said delays in trial funding from the county have affected his ability to ready Allen's defense.

Allen, 34, of Stockton, could face the death penalty if convicted of murdering Scott, who was shot about 4:40 a.m. Feb. 17, 2006,after he stopped a speeding vehicle.

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