Wednesday, Jun. 18, 2008

Allen defense blasts grand jury process in CHP officer's slaying

Attorney asks how grand jury chosen

Attorneys for Columbus Allen Jr. II on Tuesday challenged the way criminal grand jury members were chosen when he was indicted almost two years ago.

Allen is accused of first-degree murder in the death of California Highway Patrol officer Earl Scott, who was shot during a traffic stop on Highway 99 just south of Hammett Road near Salida on Feb. 17, 2006.

Allen, 32, could face the death penalty if convicted.

In Tuesday's court hearing before Stanislaus County Superior Court Judge Nancy Ashley, defense attorney John R. Grele of San Francisco questioned Deputy Jury Commissioner Joe Yniquez about how the grand jurors and alternates were chosen.

Grele contended that one or two sessions of the grand jury process were not recorded, leaving it unclear whether the jurors and alternates were chosen and seated properly. The alternates apparently were allowed to deliberate and vote during the process, Grele said, so 22 jurors participated rather than the 19 spelled out in grand jury rules.

"The prosecution says that it is OK to have 22. I don't think that's right," Grele said.

Without a record of how each juror voted, there's no way to tell if 12 of the regular grand jurors voted to indict, or if the required 12 votes included alternates, Grele said.

Chief Deputy District Attorney Alan Cassidy told the court that the alternates were questioned by the court and found to be competent, and were sworn in as grand jurors. Cassidy argued that Grele had not shown how the alternate jurors harmed Allen.

"Has there been a violation of due process?" he asked.

Because grand jury proceedings are closed, Grele said he wanted testimony from then-presiding Judge Hurl Johnson on how the jurors were chosen and seated. Ashley said she was not in a position to order Johnson to testify.

Grele agreed to contact Johnson to find a way to get the information on the record.

Cassidy objected to Grele bringing up issues that were ruled on in an earlier hearing before Johnson.

"They hope to relitigate this with a new judge," Cassidy said.

Grele said that when he challenged the selection of the grand jury earlier, Johnson should have recused himself because of his involvement in the jury's formation. Other issues in the case also are still in dispute.

Grele objected to a Bee photographer taking pictures of Allen as he was led through the hallway to the courtroom. Because Allen was in jail garb and shackles, the pictures would be prejudicial to his client, Grele said.

The Bee had requested permission to shoot pictures inside the courtroom, but was denied. Court Executive Officer Mike Tozzi said the courthouse is a public building and local rules allow photographers in the hallway as long as they don't impede defendants or court officers.

"This is ridiculous," Grele said. "I don't know who devised the local rules. I thought we were beyond this kind of sensationalism in the practice of law."

The court hearing will continue at 8:30 a.m. today.

Bee staff writer Tim Moran can be reached at tmoran@modbee.com or 578-2349.