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RICHARD PETERSON FOUND GUILTY AFTER
THREE WEEK TRIAL  [Part 8] 

by Virginia McCullough

 

Just before noon on Thursday, June 10, 2004 a Contra Costa County jury convicted Concord resident, Rich Peterson, 67 , of  felony charges that he abducted Kelli Nunez's two young daughters and conspired to hide them from father Danny Nunez from April to November 2002.  The dedicated, hard working jury brought in the guilty verdict after almost four hours of deliberations in the Martinez courtroom.  One year ago a jury found Peterson's co-defendants, Kelli Nunez and Florencio "Junior" Maning, guilty of the same felony offenses.  That verdict was returned after a lengthy and well publicized trial on June 28, 2003.  By contrast Peterson's trial attracted only two members of the media and there were few observers in the courtroom. (Click to read 8 part story)

Richard Peterson could receive a maximum prison term of four years and ten months when he is sentenced by Contra Costa County Superior Court Judge Richard E. Arnason on July 9, 2004.  Maning was sentenced to four years and ten months on August 30, 2003.  Kelli Nunez was convicted in June 2003 but has yet to be sentenced because of  post-trial legal challenges she raised regarding actions by the trial judge, Mary Ann O'Malley and the deputy prosecutor, Kirk Andrus.  On Friday, June 18, 2004 a hearing will be held to consider a motion for a new trial  filed on May 25, 2004 by Nunez's current attorney Stuart W. Willis.  This motion details thirty-four paragraphs citing examples of ineffective assistance of counsel by Nunez's public defender at trial, Teri Mockler.  The trial judge Mary Ann O'Malley will conduct the hearing.  It is possible that Kelli Nunez could be sentenced that same day and, if so, she faces a sentence of more than five years.

Richard Peterson did not stand trial with his co-defendants because his attorney, at the time, Jack Weiss, questioned Peterson's mental competency to stand trial and cooperate in his own defense. Peterson strongly disputed that he was incompetent.  Judge Garrett Grant suspended the proceedings against Peterson on May 29, 2003 pursuant to Penal Codes Section 1367 and 1368 at the request of defense counsel.  The Contra Costa District Attorney did not move for a continuance of the upcoming Maning/Nunez trial in the interests of court efficiency and/or court cost control.

The matter of Peterson's competency was argued and submitted to the court of Judge Richard E. Arnason on September 23, 2003.   Judge Arnason filed his decision with the court September 26, 2003 and it read in part as follows:

Mr. Peterson presents himself well.  He is articulate, very polite in court, appears to be intelligent and learned.  He clearly is able to understand the nature and purpose of the proceedings and that he fully comprehends his own status in these proceedings.

It is also abundantly clear that the Defendant possesses some character traits that are difficult and at times are troublesome.  He has strong opinions in certain areas........  It is also clearly shown that Mr. Peterson is not willing to make things easy for his attorney or to extend a helping hand to counsel.  Is this something he cannot overcome or control or is it something that Mr. Peterson has determined to be in his best interest in this case?  It is not always an easy task for counsel to represent a recalcitrant Defendant who does not wish to cooperate or assist counsel.  On the record before me there has been no indication that he wants to discharge his attorney pursuant to the Marsden case or to represent himself under the guidelines of Faretta.

But it is helpful to determine the issues at bench.  This appears to be one of those cases, wherein the Supreme Court said, "Once an attorney has been assigned to represent a client, he is bound to do so to the best of his abilities....despite the not uncommon difficulty of the task.",   McKenzie, supra at page 631.

I find that Mr. Peterson has the ability to cooperate with and to assist his attorney.  The fact that Mr. Peterson has chosen not to assist his attorney, when he has the ability to do so, does not mean that he is incompetent to stand trial.  It does, however, increase the burden on trial counsel.

I am confident that defense counsel will be able to fully and adequately represent Mr. Peterson and to fully protect his right to a fair trial.

In this case, the Defendant has the burden to establish by a preponderance of the evidence that he is not competent to stand trial.  In this case, lack of competency has not been established.

Criminal proceedings are reinstated and the case is returned to the Criminal Calendar  - Department 30 - for further proceedings. 

Shortly after this decision by Judge Arnason,  Peterson's attorney Jack Weiss was replaced by defense attorney Maurice Moyal.  Moyal endured the same obstinate behavior from Peterson that he had inflicted on Mr. Weiss.  Their common client refused to talk to his attorneys except to deride the counsel's legal abilities and denigrate their reputations.  Mr. Peterson has no property or assets in his own name according to court papers.  Therefore, he is judgment proof, indigent and  he was found by the county to be entitled to an attorney paid for by the taxpayers.  He refuses to fire his attorneys no matter how bad he claims they are and he makes no effort to represent himself pro per.  However he continues to severely criticize any attorney who is forced to represent him in court.  He also  continues to introduce lengthy legal papers prepared by his militia associates that clog the court processes.  Maurice Moyal, an eloquent attorney who has appeared in Contra Costa County courts for the past 32 years, was repeatedly denied the right to withdraw from Peterson's case by the courts.  Left with a client who refused to even talk to him and who constantly insulted him, Mr. Moyal presented a well thought out defense citing his clients "good intent" in trying to protect the Nunez children from the abuse that produced pictures showing severe bruising on the little girls.

Judge Mary Ann O'Malley severely limited Kelli Nunez's introduction of any evidence of child abuse to a period of one year prior to the May 2003 trial.  The original custody judge Judith Craddick had appointed a special master, Theresa Schuman, Ph.D., approximately one year before the  Nunez trial.  Kelli Nunez stated  that she was told by Judge Craddick that, as a mother, she must make all allegations of child abuse to the special master and she could not contact any doctors or police departments directly or she would be sent to jail.   These two judges issued orders that effectively hand tied the mother's efforts to protect her own children.  On October 6, 2003 when Ms. Nunez was acting as her own lawyer, she caused a subpoena to be served on the special master to appear in court with her entire file of records, notes, reports, recommendations, etc. from the period of time when she was the Court-appointed Special Master in the Marriage of Nunez.  In other words, mother Nunez was once again trying to force the court to view and enter into the record the evidence of the abuse to her children.  She continued to fight for her daughters even while she was housed in a solitary jail cell with no physical access to the "male only" law library and denied a lawyer she could trust. 

Special Master Theresa Schuman immediately wrote a letter to  Judge Mary Ann O'Malley that reads in part as follows:

                    This (subpoena) presents a number of problems as listed below.

Attached, please find a copy of my appointment as Special Master.  Please refer to Page 2, Section B1 and Page 3, Section D2.  The former section states:  The Special Master cannot be compelled to testify and is subject to the restrictions of Evidence Code Section 703.5."  The latter section states:  "The Special Master's notes and records are not subject to subpoena by the parties or counsel."  Ms. Nunez subpoenaed me on 4/9/02 in Department 9,  and I was not required to comply based on the above.

Additionally, the information she requested is privileged as it contains information about Ms. Nunez's former husband, and I do not have a release of information from him to release the information.  I would need either his signed consent or a court order.

Lastly, I am unavailable to appear in Court on 10/10/03.  Should the Court require my presence, order me to appear, and order me to turn over records, I would, of course, respectfully comply.


Simply put, the courts, working in concert with their Court Appointed  Special Master, effectively concealed any evidence of child abuse from the jury that tried Kelli Nunez and "Junior" Maning.  Nunez's public defender Teri Mockler assisted the courts and prosecutor Andrus in protecting Danny Nunez and condemning  Kelli Nunez  by also refusing to subpoena Theresa Schuman  to the stand during the mother's criminal trial.  Attorney Stuart Willis addresses this on Page 4, paragraph 9 in his motion for a new trial.

9.  Ms. Mockler refused to subpoena the court appointed Special  Master who had served in the related family law case.  In this regard it seemed that she simply accepted that the special master was not subject to being called as a witness because of provisions to that effect in the family law case.  The Defendant did not like this determination but accepted Ms. Mockler's legal determination at the time.  Special masters are, by virtue of the stipulation by which they are appointed, not subject to subpoena in family law cases.  In my opinion, this exemption would have no bearing on the criminal case and the special master could have been compelled to testify if she had relevant evidence.  It is my further opinion that she did have relevant evidence.  

In the efficient and well managed court of Judge Richard E. Arnason, during the lengthy trial of Richard Peterson, the abuse of the children was allowed to flow into the public record.  For the first two weeks  prosecutor Kirk Andrus struggled to make father Danny Nunez appear squeaky clean  -  the perfect "stay at home father" in Danny Nunez's own words.  For 11 days, veteran trial attorney Moyal presented the case that the Nunez children were abused by Danny Nunez and his fiancé, Sharon Zeff.  He argued that the defense of necessity applied - Peterson and Kelli Nunez felt they had no choice but to remove the children from Danny Nunez in order to protect them from abuse. The courteous, well-spoken attorney Moyal persevered in showing the Peterson jury every piece of evidence of child and spousal abuse dating back to May of 1999.  He detailed police reports and introduced the very damning pictures of a terribly bruised child.  Mr. Moyal then brought to the stand Contra Costa County Deputy Sheriff Anthony Souza who confirmed that mother Kelli Nunez had made the police report at the time of the abuse and the officer had documented the evidence by taking the pictures.  Then Mr. Moyal asked the "too clean, too perfect" father if he had seen the bruises on his child and, if so, why he had not called the police and/or sought medical help for his daughter.  For the first time in this long, bitter custody battle, the reasons Kelli Nunez took her children were before a jury.

The prosecution  called Judge Judith Craddick to the stand and placed her under oath to explain her actions in the marriage and custody case of the Nunez's.  In the Nunez/Maning trial Judge Craddick had not had to testify because both prosecution and defense had agreed to accept a statement by her instead of placing her on the stand.  Judge Craddick sought to justify her actions in this case as being just and moral.  However, she demonstrated her bias against Kelli Nunez in detailing her order of April 9, 2002 in which the judge orders that Kelli could only have supervised visitation with her two youngest daughters.  She stated that as a judge she felt the children were harmed by Kelli Nunez's inappropriate actions such as reporting child abuse directly to another judge instead of reporting to the special master as Craddick had told her to do.  Craddick stated that when Kelli was unhappy with the court, she did inappropriate things such as badmouth Danny.  She further explained that Kelli didn't hesitate to say whatever she wanted to say to make the kids like her and dislike Danny Nunez and Sharon Zeff.  The jury heard the tenor of voice and observed the body language of this judge and would come to their own conclusions about her testimony.  Kelli Nunez also saw this particular judge in action and it is not unreasonable to assume that she could see "the handwriting on the wall" regarding the future of herself and her children in Judge Craddick's courtroom.

Both the Nunez/Maning and Peterson trials found many of the same witnesses on the stand because all three defendants were alleged to have been involved in many of the same overt acts thereby creating a conspiracy.   Once again, Lana Hescock testified to being paid $100 by Rich Peterson to pick up the Nunez children at the San Francisco Airport and take them to the home of  another concerned mother, Susan Newman.  Ms. Newman reiterated her tale of being paid between $1500 and $1600 by Richard Peterson for baby-sitting the little girls for a period of three weeks.  Ms. Newman then obeyed Rich Peterson's orders to bring the children to the parking office of a law firm and deliver them to him.  Kathy Bettencourt, who had helped type legal papers prepared by co-defendant "Junior"  Maning to assist other parents caught up in custody and court battles, testified as she had in 2003, that she housed the Nunez girls occasionally thereafter at the request of Rich Peterson and "Junior" Maning.  She also she participated in their televised  return in November 2002.  Steve Tally gave essentially the same testimony he had given at the original trial detailing his conduct his wife's conduct in delivering the children to Dan Noyes of the I-Team, Channel 7, ABC-TV news.

After two weeks of trial, it became apparent that prosecutor Andrus' original victory in the highly publicized Nunez/Maning case was being severely tainted by the great details concerning child abuse of the Nunez children being introduced into the Peterson trial.  A court official who asked to remain anonymous spoke of a tirade in which Kirk Andrus, out of the jury's presence, accused Maurice Moyal of "damaging my case."  During an afternoon session District Attorney Chief Investigator Mark Ernst, who played a major role in the District Attorney's decision to prosecute Nunez, Maning and Peterson took the stand.  Prosecutor Andrus asked him if he had accompanied Andrus to a jail house interview with Kelli Nunez.  Ernst answered, "Yes."  Andrus asked Ernst if he recalled the comments that Kelli Nunez had made during that conversation about Andrus's children.  Ernst stated that he could not recall the exact comment.  When asked the same question the next morning Inspector Ernst recalled that Nunez had stated, referring to Andrus, "I hope your kids get raped and murdered."

In numerous telephone interviews Kelli Nunez had with this reporter she talked about this particular jail house interview with the two representatives of District Attorney Kochly's office.  She never varied in recounting her words to Mr. Andrus.  She said she told him, "How would you like it if this happened to your children?"

Following Mark Ernst's startling comments before the jury I again asked Kelli Nunez if she ever had made such blatant threats to Andrus.  Her reply was, "Of course not.  I know everything in the jail is recorded.  Why would I do that.  I just wanted him to understand how I felt as a parent." 

Up until the Ernst testimony which alleged Kelli Nunez might have made "terrorist" threats to a prosecutor, the trial had been primarily focused on the defendant Peterson. Kelli Nunez's attorney, Stuart Willis, had advised her, prior to the jury entering the courtroom, to take the fifth amendment when she had received a subpoena to appear on behalf of the defense by attorney Maurice Moyal.  After a  brief hearing on the issue Judge Arnason ruled that Nunez's Fifth Amendment right would be upheld by the court.  Ernst's testimony shifted the emphasis away from the defendant and Kelli Nunez felt she was again being placed on trial before a jury and again she was not allowed to defend herself.  She advised Mr. Willis that she wished to abandon her Fifth Amendment rights and comply with defense attorney Moyal's subpoena.  Mother Nunez faced a second jury reciting her version of the events detailed in the charges.

On the final day of the Peterson trial prosecutor Andrus sought to strengthen his case by showing clips of the extensive Channel 7, ABC-TV videotape coverage of the Nunez children's recovery and the subsequent repercussions that followed.  That day Andrus also gave a  new report to attorney Moyal detailing statements of confidential jail house informants.  Andrus said that the report had not been revealed before because Kelli Nunez was expected to be called as a witness.  At 11:00 a.m. on Wednesday May 26, 2004 the people rested their case against Richard Peterson.

Maurice Moyal then made a PC Section 1118.1 motion on behalf of his client stating that the District Attorney had presented insufficient evidence to sustain a conviction.  Judge Arnason denied  the motion.  Moyal explained to the Judge that his own client would not talk to him and Moyal said he needed to know if Peterson was going to take the stand so that he could prepare.  Moyal urged Peterson to take the stand.  The judge asked Peterson if he was going to take the stand and advised him of his right to do so or refuse to do so, despite the advice of his attorney.  Peterson said, "No."

On Tuesday June 1, 2004, following the Memorial Day weekend, Judge Arnason announced that Deputy District Attorney Andrus was injured over the long weekend and had to go the hospital.  The courtroom would remain dark for this shortened week and the case would resume on June 7, 2004 at 9:00 a.m.

When the jury was again brought in, prosecutor John Cope had replaced Kirk Andrus.  The 13-year veteran came into the case cold and brought a calmness and courtesy that equaled that of defense attorney Moyal.  The personal threats allegedly made by Kelli Nunez and pushed by Kirk Andrus were never mentioned again.  Cope's well modulated voice and professional manner concluded the prosecution's case against Richard Peterson.

The defense presented its case and it was submitted to the jury.

During their deliberations, the only evidence the jury asked to have read back them was the testimony of Susan Newman that detailed the instructions given to her by Richard Peterson regarding the Nunez children.   Minutes later they returned their guilty verdicts.  Judge Arnason warmly thanked the jury stating that without the dedication of these citizens our system of justice could not succeed.  The weary jurors left the courtroom.

Emphasizing the personality traits attributed to him by Judge Arnason in the competency decision, Richard Peterson  spewed a final series of insults at attorney Moyal and whispered that he was firing him.  Mr. Moyal said, "Judge, he fired me." 

Richard Peterson will probably never take responsibility for his own actions.  But the jury understood clearly who was in control of the children during the six months they were missing while their mother sat is jail at the insistence of Judge Judith Craddick.   Defense attorney Moyal and Judge Richard Arnason should rest easy and feel morally secure in knowing that they allowed two little abused girls to have their day in court.   

Virginia McCullough © 6-13-04


THE KELLI NUNEZ STORY:  Click.  [Part 9]  Click. [Part 8] CLICK. [Part 7] CLICK. [Part 6] CLICK. [Part 5] CLICK.
[Part 4] CLICK.  [Part 3] CLICK.  [Part 2] CLICK  [Part 1]