Monday, December 01, 2008

Defense lawyer's release means new attorney must learn case

By Rosalio Ahumada
rahumada@modbee.com

last updated: October 06, 2008 06:42:08 AM

The capital murder trial of a Stockton man charged in the slaying of a California Highway Patrol officer likely will have more setbacks with crucial pretrial hearings expected to be rescheduled today.

The setbacks are part of the ripple effect created after defendant Columbus Allen Jr. II persuaded a judge to release a lawyer who has led his defense for two years.

Hearings on two pending pre-trial motions -- to move the trial to another county and to suppress statements Allen gave to authorities before he was arrested -- were previously scheduled for Tuesday and Oct. 14.

Assistant District Attorney Carol Shipley said defense and prosecuting attorneys will meet in Stanislaus County Superior Court this afternoon to reschedule those pretrial hearings.

"I don't think you will hear any opposition from the attorneys (on both sides)," Shipley said. "I think they will reschedule these hearings and move forward."

Allen, 32, of Stockton is suspected of killing CHP officer Earl Scott during an early morning traffic stop Feb. 17, 2006, on northbound Highway 99, just south of Hammett Road, near Salida. When he was found, Scott was gripping 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.

Attorney Ramon Magaña of Modesto led Allen's defense until a breakdown in communications led to his departure, he has said. He would not disclose the nature of that conflict.

The change has pushed attorney John R. Grele of San Francisco into leading Allen's defense. Grele initially joined Allen's defense to help with death penalty issues.

Grele and lead prosecutor Chief Deputy District Attorney Alan Cassidy could not be reached for comment.

Two lawyers recommended

The court likely will appoint another defense attorney to back up Grele, because the American Bar Association recommends that defendants in capital cases have at least two lawyers.

"The new lawyer is going to take a lot of time to get up to speed," said Michael Vitiello, a professor specializing in criminal cases at the University of the Pacific's McGeorge School of Law in Sacramento.

He said the court has to ensure there is trust between the defendant and his attorney, or the verdict could be overturned.

Vitiello has clerked for the intermediate appellate court in Pennsylvania and helped establish the Loyola Death Penalty Resource Center at Loyola University Law School in New Orleans.

"You want to make sure that the trial has been done right," Vitiello said. "Let the process work."

Ruth Jones also is a professor at the McGeorge School of Law and was a New York City prosecutor for five years. She said each criminal trial, especially a capital murder case, moves at its own speed, adjusting to issues that develop before and during the trial.

"Things happen in a case, and these things that happen are not extraordinary," Jones said of the removal of Allen's defense attorney a few weeks before the scheduled start of the trial.

The court has to balance objectives that sometimes conflict with one another. For instance, the court wants to move forward efficiently while guaranteeing a defendant's constitutional rights to an attorney and a fair trial, Jones said.

Shorter in the long run

Finding a new attorney to represent Allen, allowing him or her enough time to get up to speed and dealing with all the pretrial motions will create delays, Jones said, but it will also prevent interruptions that could derail the trial once it starts.

"It's going to take a while before (Allen's) trial takes place," Jones said about the delays. "In the long run, it actually makes the trial shorter."

A motion for change of venue is one of those pretrial matters. The last high-profile trial in Stanislaus County that was moved to another county was the Scott Peterson murder trial, which was moved to Redwood City.

It can become a logistical nightmare for everyone involved, but moving a trial could make it easier to select a fair jury, Jones said. Change of venue motions are granted if a judge finds that there has been too much publicity about a case to seat an unbiased jury.

"(The Peterson) trial was a national story, so it actually didn't make sense to move it," Jones said. "In (Allen's) trial, it's not a national story, so it could be easier to find a fair jury in another county."

Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or 578-2394.

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