Judge denies Mesiti’s request for new attorney; effort to withdraw guilty plea continues

A Stanislaus County judge on Thursday denied Mark Edward Mesiti’s request for a new attorney to help him withdraw his guilty plea in the death of his daughter, Alycia Mesiti.

But Mesiti’s effort to seek a new trial isn’t over yet. The defendant wants defense attorney Steven O’Connor to replace his court-appointed attorney, Martin Baker, who represented Mesiti in his trial.

“Mr. Mesiti strongly asserts his innocence,” O’Connor said after Thursday’s hearing. “The guilty pleas resulted from incompetence of counsel and other legal errors.”

Baker declined to respond to O’Connor’s comments. Chief Deputy District Attorney Annette Rees, who prosecuted the case, has said she was suspicious of Mesiti’s sudden decision to plead guilty with no plea deal offer from the prosecution. She also has said she’s not surprised Mesiti is trying to delay justice by trying to withdraw his guilty plea.

Mesiti on Oct. 17 pleaded guilty to more than 40 criminal charges in the drugging, sexual abuse and killing of his daughter. On March 25, 2009, the 14-year-old girl’s body was found buried in the backyard of the Ceres home where her father lived at the time of her disappearance in August 2006. He had since moved to Southern California.

O’Connor says Mesiti has retained him as legal counsel to help the defendant file a motion to withdraw his 49 guilty pleas in the murder and sexual abuse case.

Alycia died of a “mixed drug intoxication.” The prosecution said investigators found images of Mesiti sexually assaulting his daughter while she was unconscious.

Authorities believed Mesiti drugged his daughter with prescription anti-depressants, benzodiazepine, morphine and methadone to prevent her from resisting his sexual abuse.

Baker argued that Alycia likely died from a drug overdose, telling the jury that a forensic pathologist did not determine the manner of the girl’s death.

Earlier this month, Mesiti stunned almost everyone involved in his case when he informed the prosecution he was willing to plead guilty to all his charges in exchange for a sentence of life in prison without the possibility of parole.

His murder trial had just started a couple of weeks earlier, and the jury only had heard about a few days’ worth of testimony when Mesiti offered the plea deal. Prosecutors were seeking the death penalty.

Last week, Mesiti changed his mind and informed the court he wanted to withdraw his guilty plea. On Thursday morning, O’Connor sat in court behind Mesiti, who was sitting next to Baker.

Superior Court Judge Dawna Reeves had to warn O’Connor about inserting his arguments, while Baker was speaking. She had to remind O’Connor that he is not Mesiti’s attorney.

“I can’t have a hearing with you interrupting,” Reeves said.

The judge cleared the courtroom including O’Connor, so Mesiti could tell the judge why the court should replace Baker. About 20 minutes later, the courtroom was opened. Reeves said she denied Mesiti’s request for a new attorney.

“There was no evidence presented (during the closed hearing),” the judge said.

Mesiti, 49, was convicted of murder and more than 40 counts of sexually abusing his daughter, as well as sexual abuse charges involving two other girls identified as Jane Doe 1 and Jane Doe 2 in court documents.

Mesiti’s sentencing hearing remains scheduled for Nov. 28, when the victims’ families will have an opportunity to speak in court before the defendant is formally sentenced. Reeves said Baker remains Mesiti’s attorney, and Baker should continue to prepare for the sentencing hearing.

O’Connor told the judge there may be a new motion from Mesiti seeking a new attorney. The judge told O’Connor that if he has a new defense motion, then he should file it.

Mesiti wants O’Connor to file a motion to withdraw his guilty plea, but he can’t do that if Baker is still his court-appointed attorney. So, Mesiti wants to replace Baker. O’Connor told the judge that Baker cannot help Mesiti file a motion seeking a new attorney. “How can counsel litigate his own incompetence?”

At the Oct. 17 hearing, prosecutors required Mesiti to read an allocution statement in court admitting he committed acts of sexual abuse in order to get his deal to avoid trial and a possible death sentence. The District Attorney’s Office wrote the allocution listing in explicit detail every act of abuse he committed on his daughter and the two other girls.

After Thursday’s hearing, O’Connor insisted the allocution was written by Rees; not Mesiti. He said once all the facts are known, the court should allow the guilty plea withdrawal and grant Mesiti “a fair trial with competent counsel.”

“The more horrible the accusations in a criminal case, the more careful we need to be that prejudice does not lead to the conviction of an innocent person,” O’Connor said.

ATTORNEY’S COMPETENCE

The question of a defense attorney’s competency was the focus of another Stanislaus County case involving O’Connor. He represented defendant Nicholas John Harris, who in June 2014 was found guilty of second-degree murder and arson in the stabbing death of Mark Anthony Henson.

A month after the guilty verdict, O’Connor refused to continue with the sanity trial phase of the Harris’ murder case. O’Connor said in court that he was not competent and wanted off the case, so his client could appeal the jury’s verdict. Superior Court Judge Linda McFadden warned O’Connor his actions could have repercussions to his legal career.

About a month later, O’Connor changed his mind and was willing to continue with Harris’ case. The jury determined Harris was sane during the deadly stabbing and he was later sentenced to 16 years to life in prison.

When Thursday’s hearing ended, O’Connor tried to follow Mesiti into a holding area just outside the courtroom but was stopped by a court bailiff. Attorneys are allowed to meet with their incarcerated clients in this holding area before and after hearings. The bailiff told O’Connor “He’s going back to the jail. You can visit him there.”

This story was originally published November 2, 2017 at 10:35 AM with the headline "Judge denies Mesiti’s request for new attorney; effort to withdraw guilty plea continues."