Stanislaus County judge removes himself from death penalty case

A Stanislaus County judge has removed himself from a death penalty case he has presided over for the past six years, but it’s not exactly clear why he’s recusing himself now.

A minute order filed July 24 indicates Superior Court Judge John Freeland will no longer participate in any proceedings involving the case of Mark Edward Mesiti, who is accused of killing his 14-year-old daughter, Alycia Mesiti.

Authorities on March 25, 2009, discovered the girl’s body buried in the backyard of a Ceres home where Mesiti’s family lived when the girl disappeared in August 2006. He had already moved to Southern California when the girl’s remains were found.

Along with the capital murder charge, Mesiti is charged with more than 40 counts of sexually abusing his daughter, as well as sexual abuse charges involving two other girls, according to a criminal grand jury indictment. The defendant has pleaded not guilty to the charges and denied all special circumstances allegations.

Freeland on Friday did not comment about his recusal. Court Executive Officer Rebecca Fleming said the state’s judicial ethics code prohibits him from making any public comment about his decision. The filed minute order only indicates that the judge is recusing himself but not his reason for doing so.

Martin Baker, one of Mesiti’s attorneys, on Tuesday filed a formal request, asking the court – specifically Freeland – for a written statement indicating the judge’s grounds for recusal. The defense attorney also is asking the court when Freeland realized when he could no longer preside over the case.

It was unclear Friday how the court will respond to the defense’s request. Court officials said there is no other document filed by the judge that provides his reason for leaving the case.

The filed minute order refers to a portion of Code of Civil Procedure as the basis for the judge’s recusal. That portion of the civil code allows recusal when the judge believes there is a substantial doubt as to his or her capacity to be impartial, or when a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.

The case has been mired in numerous postponements, requests for new defense attorneys, legal challenges by the Sheriff’s Department over jail issues, the removal of the lead prosecutor and her reinstatement in the case, and reviews by an appellate court.

Freeland came under scrutiny in fall 2013 when prosecutors disqualified the judge more than 500 times in a few months, moving their cases out of his courtroom. By spring 2014, Freeland had been reassigned to civil court.

Fleming has said the District Attorney’s Office’s actions had nothing to do with Freeland’s transfer to civil court. She explained that Freeland’s previous experience as a civil case attorney made him perfect to replace a retiring civil court judge

District Attorney Birgit Fladager has said Freeland had upset her prosecutors for too long, so she ordered them to reject Freeland in all new criminal matters, which is an attorney’s right to be exercised only when cases begin. She also has said her office’s response to Freeland’s performance might have played a role in the decision to move him out of criminal court.

Judge Ricardo Córdova has spoken in support of his colleague, telling The Modesto Bee that Freeland does plenty of research before making a ruling and works hard to be fair to both sides.

“Judge Freeland is one of the most conscientious judges we have,” Córdova said in March 2014. “He does his best to do the right thing. This criticism of him is unwarranted.”

While Freeland has been handling civil cases for more than a year, he continued to preside over the Mesiti murder case. Court officials said Freeland would stick with the Mesiti case because the defendant faces the death penalty.

A few months after the girl’s body was found at her Alexis Court home in Ceres, prosecutors filed charges against Mesiti. Freeland was then assigned as the judge in the case.

The defendant and the rest of his family by then had moved to Los Angeles, where he was arrested and later convicted in 2011 of manufacturing methamphetamine. Prosecutors here waited two years before Mesiti’s case in Los Angeles concluded, and he was returned to Stanislaus County to face charges in his daughter’s death.

Judge Freeland in August 2013 removed Chief Deputy District Attorney Annette Rees from the case. The judge said at the time that defense plans to call Rees as a witness in the trial presented a conflict of interest.

About a year later, a three-judge appellate panel determined that Freeland erred in his decision to remove Rees and reinstated the prosecutor. The appellate court said a conflict of interest does not exist if Freeland doesn’t believe Mesiti’s claims are true. The defendant testified in an evidentiary hearing that Rees was reluctant to prosecute another man accused of molesting Alycia. That man, Gregory Joseph Ulrich, later pleaded no contest to molesting Alycia in 2005.

Several attorneys have been appointed to represent Mesiti; some have asked to be removed from the case because of conflicts of interest. Mesiti has asked the court to replace his attorneys several times, which result in lengthy closed-door court hearings so that the judge can learn why the defendant wants new attorneys.

Mesiti is currently legally represented by Baker and Doug Maner. State law allows defendants in death penalty cases to have two court-appointed attorneys. Rees remains the lead prosecutor in the case.

After Freeland’s transfer to civil court, the hearings in the Mesiti case were held in whatever courtroom was available in the afternoon.

Each time, he would leave the civil courthouse on H and 10th streets in downtown Modesto and head over to the criminal courtrooms on 11th and H streets. After a series of delays, the judge instructed court staffers not to call for him until all the attorneys in the Mesiti case were in the courtroom and ready to proceed.

In March, Baker told Judge Freeland that jail officials were depriving Mesiti of his “constitutional right to meaningfully participate in his own defense.” Mesiti wanted jail officials to unshackle him while he meets with his attorneys inside the jail. His attorneys have argued it’s difficult for Mesiti to review thousands of documents relating to more than 50 criminal charges listed in the indictment.

On April 1, Freeland ordered the jail’s staff to unshackle Mesiti’s writing hand after his other shackles are secured to the floor inside the room. Because this is a death penalty case, the judge said the defendant needs to be able to point to and refer to the thousands of documents in his case.

The judge, however, said his ruling only applied to the Mesiti case. He told the attorneys he would have made a different decision in a case involving less serious charges and possible punishment.

On April 20, the Stanislaus County Sheriff’s Department filed an appeal. On May 5, Freeland reversed his ruling on the shackling issue, and the state’s 5th District Court of Appeal dropped the matter because the judge had already vacated the order. Freeland said he reconsidered his initial ruling after determining that handcuffing both of the defendant’s hands is a valid jail security regulation, according to court documents.

Prosecutors obtained a criminal grand jury indictment against Mesiti, so the case would skip the preliminary hearing phase and move straight to trial. Nearly two years passed before Mesiti was arraigned on the indictment.

Mesiti’s trial cannot be scheduled until his attorneys have a chance to challenge the evidence presented to the grand jury behind closed doors. The attorneys will get that chance on Aug. 25 in a hearing with Judge Thomas Zeff.

Court officials on Friday said Judge Dawna Reeves has been assigned to handle all other matters in the Mesiti case, including the trial. The defendant is scheduled to return to court Thursday for a hearing in Reeves’ courtroom. Mesiti remains in custody at the jail.

This story was originally published August 1, 2015 at 4:21 PM with the headline "Stanislaus County judge removes himself from death penalty case."