The four defendants accused of a hate crime in the burning of a cross near the Arroyo Grande home of a black teen in March have filed an appeal to reverse a decision prohibiting them from possessing court documents they say are critical to preparing a defense.
On Sept. 7, Superior Court Judge Jacquelyn Duffy granted prosecutor Dave Pomeroy’s request for an order prohibiting the defendants from having copies of “discovery” evidence in their possession in County Jail.
The voluminous discovery evidence includes police reports, investigative information of the crime scene and the defendants’ statements to police.
The prosecution believes the defendants’ ability to hold onto the documentation with information about the case could put witnesses who cooperated with investigators in harm’s way.
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But the defense attorneys believe their clients should be able to review evidence at their discretion to best assist with preparation in the defense. They don’t believe good cause has been shown to justify Duffy’s decision.
Defendants Jason Kahn, 37; William Soto, 20; Jeremiah “Smurf” Hernandez, 33; and Sara Matheny, 24, have joined in the appeal filed by their lawyers.
Each has pleaded not guilty to felony charges that include arson and terrorism in the burning of an 11-foot-tall wooden cross next door to the residence of a black teenager on March 18.
Criminal defendants are typically allowed to possess discovery documents to assist their lawyers with their defense as they await trial.
But the prosecution filed the order out of fear that confidential informants might be identified — even with their names redacted in reports — and face potential harm because of their cooperation with police.
“While we understand that defendants have the constitutional right to review discovery in the presence of their attorney, they don’t have the constitutional right to possess it,” said Chief Deputy District Attorney Jerret Gran. “We don’t want to put witnesses at risk.”
Gran said that in jail the paperwork can be used to prove to fellow inmates the identities of witnesses who may have spoken to police.
But in a legal argument joined by the other defendants, defense attorney Raymond Allen, who represents Hernandez, wrote to the 2nd District Court of Appeal in Ventura County that no witnesses are at risk.
Allen wrote that his client, Hernandez, possessed discovery evidence for three weeks in County Jail before Duffy’s decision was made and wrote that the defendants already knew who their accusers are anyway.
Defense attorneys can meet with their clients, talking through a glass window at County Jail, but communicating about the documentation is burdensome.
“To read out loud thousands of pages of discovery to a defendant or to hold up a sheet of paper onto glass for the defendant to read is insufficient and time-consuming,” Allen argued.
Allen acknowledged an allegation of a pre-arrest statement made by Kahn telling a witness that, “If you tell someone, you’re gonna wish you hadn’t.”
But Allen argued no other allegation exists and that “no threats of any kind, to anyone, were reported during the time that (Hernandez) had possession of the discovery.”
Allen said a Mexican Mafia murder case, cited by the prosecution in its argument to Duffy about protecting witness identities, involved direct threats of death against a witness and a gang with a propensity to harm and intimidate. “The threat to a witness’ safety must be specific and credible,” Allen wrote.
A decision by the 2nd District Court of Appeal is pending. By law, the defendants would have access to the documentation 30 days prior to trial regardless of Duffy’s order as it stands now.