LAKEPORT >> A fourth judge recused himself from the Hell”s Angels trial on Wednesday citing potential biases in a more than 3-year-old case. Lawyers for the defense also filed three motions on Wednesday, one of which requests dismissal of charges while accusing District Attorney Deputy (DDA) Art Grothe of using the criminal proceedings to wage a campaign against Lake County Sheriff Frank Rivero.
After discussing the motions filed by attorney Michael Clough, who is representing Hell”s Angels member Nicholas F. Carrillo, Judge Robert L. Crone explained his long-term friendship with Judge Richard Martin as the reason for his recusal. Judge Martin had previously abstained from presiding over the case in March 2013 as his son, Brian Martin, was running for election as sheriff at the time.
Judge Stephen Hedstrom declined to preside over the case in 2012 without hearing any of the case. He gave the reason that he had a discussion about the case with someone outside of the court, according to Clough.
Judge Andrew Blum also recused himself from the case in May, 2013. Blum had presided over a hearing on a motion by Carrillo to obtain discovery of impeachment evidence in the confidential personnel files of Rivero. However, upon Blum”s finding that there was no information to disclose to the court and following advice from the District Attorney”s (DA) Office of information regarding Rivero”s status on the Brady List, the defense filed a renewed Pitchess motion to review Rivero”s personal files.
While Judge Martin denied the motion before recusing himself from the case, Judge David Herrick agreed to conduct a second review of Rivero”s files and found some material to be discoverable, ordering it to be disclosed to the defense counsel. Subsequently, Blum recused himself from the case, although he denied holding a bias, according to Clough.
Coincidentally, one of the motions Clough brought before Crone on Wednesday was a motion to dismiss Carrillo”s charges on the basis that his rights to have his case heard by a fair and impartial judge had been violated under the circumstances surrounding judges Blum and Martin”s involvement.
Clough”s motion criticizes Blum for holding “Carrillo to answer on felony charges even though DDA Grothe failed to present any evidence or argument to support his office”s decision to charge him and (defendant Josh L.) Johnson with a felony violation Penal Code section 186.22(A) until after he (was) prompted by Judge Blum to suggest that they might be held to answer on aiding and abetting.”
According to Clough, following the altercation between the defendants (Carrillo, Johnson and Timothy Bianchi) and a member of the Vagos Motorcycle Club, Carrillo and Johnson were only charged with misdemeanors but were subsequently charged with a Penal Code section 186.22 felony violation for their mere involvement in a gang. However, to receive such a gang-related felony, the charge must be related to another felony charge, rather than a misdemeanor.
Clough said Grothe could have originally charged Carrillo and Johnson with felonies for aiding and abetting, but his failure to do so “creates a strong presumption that he didn”t believe they committed a felony to begin with.”
Furthermore, Clough”s motion accuses Blum of sharply responding when defense counsel raised questions about relevant evidence he believed was in Rivero”s files.
Clough”s other two motions concern the return of evidence seized from Carrillo in 2011 and a second request for dismissal of Carrillo”s charges with a lengthy argument showing how Grothe and the DA”s Office have improperly used the trial to conduct a smear campaign of Rivero as he approached re-election.
The evidence taken from Carrillo”s home in 2011, which includes computers, cell phones, a rifle and XBox, has been held past the 120-day warrant used to seize it. According to a letter provided to Clough Wednesday morning by John Gregore of the Lake County Sheriff”s Office (LCSO), some examinations of the evidence had not been conducted at all and there did not appear to be any information relevant to the investigation on the evidence that was searched.
In the final motion, Clough asserts that “under the guise of fulfilling their prosecutorial duties to disclose so-called Brady material involving Sheriff Rivero and correcting false testimony,” Grothe and DA Don Anderson have “deliberately and in bad faith” waged a political and possibly personal campaign against Rivero.
According to Clough, Rivero became involved in the case after a deputy had investigated the altercation between the defendants and Vagos Motorcycle Club members at Konocti Vista Casino and closed the case without filing charges. Rivero reportedly initiated a disciplinary procedure against the deputy, went to the casino and acquired some of the security camera footage of the fight.
Throughout the case, Clough claims Grothe and Anderson have taken “a series of bizarre actions.” While it represents the prosecutors, the DA”s Office has been in communication with the defense council multiple times, providing information on Rivero”s Brady List status, Clough stated in his motion. Rivero was placed on the Brady List in 2013 by Anderson after providing varying statements during a shooting investigation in 2008, meaning his credibility issues must be disclosed during any court case that calls upon him as a material witness.
Another example Clough provides in his argument details the first day of the case”s preliminary hearing in March 2012 when Grothe called Rivero to testify but on the second day, advised the defense that Rivero had falsely testified about the timing of a contact he had with Tribal Chair Tony Jack. Grothe then called one of Rivero”s deputies to establish that his boss”s testimony was false concerning the “relatively immaterial issue.”
However, in January 2013, more than a year after Grothe began facilitating the disclosure of Rivero”s information, Grothe and Anderson asserted that Rivero was not a material witness and they did not intend to call him to testify at trial, Clough”s motion continues. Clough summarizes that a “competent prosecutor” would have never called Rivero to testify at the preliminary hearing and would therefore, not have had an obligation to disclose any Brady material to the defendants.
In May 2013, Grothe permitted the defense to reopen the preliminary hearing and cross-examine Rivero, an offer that Clough describes as “absurd.”
Clough describes Grothe”s filing on Feb. 5 of a Motion in Liminie, which requests that the court exclude certain evidence or information from the trial, as “possibly the most bizarre action” taken by Grothe.
The motion asked the court to order the defense be precluded from introducing a two-page list of information, including alleged evidence of a vehicle collision between Rivero and a pedestrian in Middletown, evidence of any allegations of sexual assault, alleged evidence of Rivero monitoring of LCSO employee emails, evidence regarding any of the facts or law relating to Rivero”s personal grooming or lack of compliance with LCSO personal grooming policies and evidence of Rivero”s alleged false claim of veteran status.
“Given the facts of this case and the timing of the motion, the most plausible reason it was filed was to air a laundry list of potentially damaging allegations and innuendo about Rivero just as the campaigns for Lake County sheriff and District Attorney were beginning to heat up,” Clough concludes. “Grothe could not have conceivably believed that the defense had any intention of introducing evidence related to most of the items on this list.”
“The motion has no legal basis, nor does it have any factual basis,” Anderson said in response. “We don”t prosecute based on any ill feelings between the sheriff and myself. It”s our position that the Hell”s Angels is an outlawed, criminal street gang and that”s why it”s being prosecuted.”
In addition, Anderson said Rivero was called in during the early states of the trial “mainly because the Hell”s Angels was saying he was a material witness.” He was dismissed from being a material witness by the prosecutors because all Rivero did was obtain videos of the assault and through other sources and a subpoena of the casino, the DA”s Office was able to obtain the same information.
In regards to Grothe”s Motion in Liminie, the DA”s office believed the defense may have brought those issues up and as a time-saving measure, it wanted a ruling on what information the court believed was relevant to the case, Anderson said.
“What we”re facing here is a lot of maneuvering that doesn”t address the basic facts of whether the Hell”s Angels ? were involved in criminal activity,” he added.
Grothe did not return phone calls by press time to provide additional comment on Clough”s allegations. On Wednesday in court, Grothe said the defense counsel was giving “conspiracy theories.”
With the four judges recused from the case, and one of them being a retired judge, one Lake County judge is left available to preside over the case: Judge Michael S. Lunas. However, a separate judge is required to preside over the hearing of Clough”s three motions and Clough believes the judicial counsel will have to call in an out-of-county judge, which is likely to come at an extra cost to the county.
Today the court will hold a trial readiness hearing to schedule the upcoming trial. The defense has pulled its clients” time waivers, which means the trial now has to begin within the next 60 days. Clough said he is unsure if his motions will be heard before or during the trial.
