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THE SUSAN POLK MURDER TRIAL --
THE OTHER SIDE OF THE STORY (Part 1)

by Virginia McCullough

The turbulent murder trial of accused husband killer Susan Polk enters another week as prosecutor Paul Sequeira continues presenting the state's position.  Defendant Susan Polk acting as her own attorney is often rambling and emotional in her presentation.  It is a trial that is testing the patience of the prosecutor, Judge Laurel Brady, the jury and the spectators who daily fill the courtroom.

National television's fascination with the case is evidenced by the network satellite trucks monopolizing the reserved parking places outside the new courthouse in Martinez, California.  Television interviewers and their cameramen line up hours before the court begins at 9:00 a.m. waiting to film the principals in the case and attorneys who flock to the entrance in the hopes of becoming a pundit, however briefly. Reporters from the various printed media can be seen daily scribbling details on their notebooks.

Inside the courthouse on the second floor spectators queue up next to a rectangle of seats reserved for the jury.  Last week Judge Brady asked the spectators to move to the other end of the hall to prevent their conversations from being overheard by jury members.

The first witness for the prosecution was Gabriel Polk, the youngest son of Susan and Felix Polk.  Paul Sequeira took only half a day leading his witness through the emotional landmine of finding his father's body laying in blood in the pool house of the family estate in Orinda, California on October 14, 2002.  At that time Gabriel was just 15-years-old and was at the center of a bitter custody dispute between his divorcing parents.  Now he is a young man, composed and confrontational during the four days of intense cross examination by his mother.

Susan Polk dismissed three attorneys whom she said would not argue a pure self defense case on her behalf.  But it was the fourth attorney Daniel Horowitz and the brutal murder of his wife Pamela Vitale in October 2005 that focused international attention on the Polk trial.  On October 11, 2005 Daniel Horowitz delivered the opening statements in the Susan Polk murder case. Four days later in the late afternoon Daniel Horowitz arrived home to discover the body of his beloved wife beaten to death just inside the front door of their trailer home.  On October 17, 2005, Judge Laurel Brady declared a mistrial and sent the first Polk jury home citing the international publicity covering the tragedy in Horowitz' life.  A new trial date was set for January 31, 2006 after Susan Polk said that there was no conflicts of interest between her case and the investigation into Pamela Vitale's murder.  At first it appeared that the attorney would try to overcome his grief and continue to represent his client.  It soon became apparent, however, that disputes had arisen between the attorney and his client.  On January 12, 2006 Susan Polk again fired her attorney and prepared to represent herself at trial.

That same day Susan Polk filed the following declaration in her case file.  The original declaration was neatly written in pencil because that is all that is allowed to be used in the West County Jail where Polk is housed. This is what Susan Polk believes in her own words.

To the Honorable Judge in the above entitled action and District of the County of Contra Costa.

Please be advised that on Friday, January 13, 2006, the defendant will move the court for an order disqualifying Judge Brady and the entire bench of Contra Costa County for cause.

This motion is based upon this notice of motion, the attached declaration, memo of points and authorities, and other documents which the defendant will submit as soon as possible as well as oral argument, which the defendant requests, and testimony from witnesses.

Declaration of Susan Polk re: 1/12/06 Motion
Under CCP 170.1 to Disqualify Judge Brady and the Entire Bench of Contra Costa County

I, Susan Polk, declare the following to be true and accurate to the best of my knowledge:

1.  I am the defendant in the action to which this declaration is attached;

2.  I have reason to believe that Judge Brady is biased and prejudiced against me, and that I cannot receive a fair trial before her;

3.  I am informed and I believe it to be true that Judge Brady has discussed this case with persons outside of this courtroom;

4.  I am informed and believe it to be true that animosity exists towards me within the judiciary of Contra Costa County;

5.  I am informed and believe it to be true that Judges Dan and Mary Ann O'Malley, Judge Flinn, and Judge Brady bear enmity towards me, and that this enmity has been verbally expressed to Jack Provine, an attorney of stature in Contra Costa County;

6.  I am informed and believe it to be true, that Mr. Provine is a friend of Judges Dan and Mary Ann O'Malley, and Judge Flinn, and that

7.  These sentiments were conveyed to him, and that

8.  Judge Brady has a friendship with Judge Mary Ann O'Malley, and that my case has been discussed, and that Judge Brady has expressed prejudice.

9.  I am informed and I believe that this prejudice has resulted in a tainting of the Contra Costa bench due to the influence and popularity of Judge Dan O'Malley's family.

10.  In April of 2005, I moved to disqualify Judge Dan and Mary Ann O'Malley for cause after my bail was revoked by Judge Mary Ann O'Malley. I had posted a bail of $1,050,000 in Sept. of 2004 after bail was set by Judge Mary Ann O'Malley. Until then, I had been on a no bail status for almost 2 years following my arrest in October 2002 on a charge of murdering my husband.

11.  A no contact order was set as a condition of bail by Judge Dan O'Malley without a hearing to determine whether a no contact order was appropriate. The no contact order forbade contact with my youngest son, Gabriel, Barry Morris, a patient of my husband and a criminal defense lawyer who threatened to get a gun if I were released, Dan and Marjorie Briner, a couple with whom my son Gabriel has resided since my arrest, and Budd McKenzie, a friend of the Briners who is also my brother-in-law's attorney in his capacity as executor of the estate.

12 . I was told that the no contact order did not apply to legal correspondence by my lawyers, Jack Funk and Peter Coleridge. Mr. Coleridge has submitted a declaration to that effect.

13.  I was in pro per on a civil matter at that time. Penal Code 136.2(d) provides an exception to written communications by the attorney of record to no contact orders. However, I was charged with 24 counts of contempt of court for 24 emails to Gabriel and re-incarcerated and placed on a no bail hold by Judge Mary Ann O'Malley.

14.  My motions to recuse Judge Dan and Mary Ann O'Malley were approved, and they were disqualified.

15.  Judge Flinn expressed chagrin that I had moved to disqualify Judges Dan and Mary Ann O'Malley when my case was transferred to his courtroom. He repeatedly ostracized me in court, thereby expressing his prejudice.

16.  My case was then assigned to Judge Brady, who has repeatedly directed prejudicial comments to me.  Since moving to disqualify her for cause on the day my case was assigned to Judge Brady in August, I have been subjected to discriminatory treatment by law enforcement, including being placed in shackles, the only female prisoner to be transported in shackles in Contra Costa County.  After I objected to the shackling in court, I was falsely accused of being an escape risk.

17.  The contempt of court charges were dropped, however the no bail status was maintained.

18.  Subsequently, in a bail hearing, the DA claimed that the decision to drop the charges was tactical and Judge Brady agreed.

19.  Judge Brady increased my bail to $8,000,000 from $1,050,000, and continued a no bail hold.  This act alone shows bias and prejudice.  The scheduled bail is $1,050,000. No person in custody or out in Contra Costa County has an $8,000,000 bail.

20.  I have asked my counsel, Dan Horowitz to file a motion to disqualify Judge Brady for cause. He has not done so.

21.  Most recently, on December 2, 2005, I inquired of Judge Brady whether her clerk, Nancy Tcherkow is related to Sgt. Tcherkow, an officer who conducted an investigator related to my case who could be called as a hostile witness in my case, and Judge Brady, refusing to answer, instructed my counsel to file the necessary documents to challenge her for cause. He has failed to do so.

22.  In August of 2003, on a day I attempted to file a Faretta Motion, I was attacked by Dep. Carin, and my arm was broken by him. He hit my elbow with a "blackjack," a metal rod. The officer assigned to investigate, Sgt. Tcherkow, appears to be related to Judge Brady's clerk. This relationship may have influenced her decision to withhold Sgt. Tcherkow's personnel records which I requested in a Pitchess Motion.

23.  Sgt. Tcherkow was the investigating officer. He refused to take my statement, angrily declaring: "I'm not taking anything from you," betraying prejudice and animosity.

24.  This beating is relevant to the homicide case in that I intend to show that the investigation was tainted, exculpatory evidence including my diary was destroyed by law enforcement officers. Other examples of tampering with evidence exist. The beating was an attempt to silence me. In fact, Dep. Carin said just before he broke my arm, "I told you not to speak in court", a major obstacle to a pro per defendant.

25.  I believe the reason for this animosity is political. In October 2002, shortly before my husband's death, I sent a letter containing an excerpt from my diary to 7 (seven) judges in Contra Costa County accusing Judge Kolin of taking a bribe in a juvenile case involving one of my sons.  There were other political statements in my diary, excerpts which may have given rise to prejudice. I believe Judge Brady received a copy of this letter.

26.  Judge Kolin was called as a prosecution witness at a bail hearing in 2004. He is a friend of Budd McKenzie, my brother-in-law's attorney, and so testified.  Mr. McKenzie, according to Judge Kolin, asked him to help prevent me from getting bail.

27.  Judge Dan O'Malley essentially recused himself in October of 2004, stating he had been contacted by a number of De la Salle parents.  The Briners, friends of Budd McKenzie with whom my son Gabriel lives, are De la Salle parents.  Mr. McKenzie was a De la Salle parent.  The O'Malleys are Carondolet parents. the sister school of De la Salle. It seems apparent that there has been a great amount of discussion and influence among these parties which has also prejudiced the bench.

28.  It should also be noted that De la Salle raised money for my sons following their father's death.  The Psychology teacher at De la Salle, Mr. Otterstadt, was a former patient and trainee of my husband.  I am informed and believe it to be true that Mr. Otterstadt organized the De la Salle community in relation to my husband's death and the case against me.

30.  On October 15, 2005, my attorney's wife was murdered.

31.  My attorney, Dan Horowitz was suspected in the murder of his wife.  I have asked him to withdraw as my counsel as he has failed to follow through with promises that he has made to me, ineffective assistance of counsel, and conflicts with prosecution witnesses, informants and the bench.

32.  I also believe that there is a conflict of interest arising out of the murder of Mr. Horowitz' wife which would preclude his continued representation of me, in addition to other conflicts which have recently come to my attention, which may explain why Mr. Horowitz failed to file a motion to recuse Judge Brady for cause and the entire bench of Contra Costa County, although he had promised to do so.

33.  Mr. Horowitz has a friendship with Barry Morris, a primary prosecution witness and my husband's former patient, and other colleagues and persons with whom my husband was affiliated.

34.  Hence, I bring this motion on my own behalf at the earliest possible opportunity, having asked Mr. Horowitz to withdraw as counsel, and having prepared a Faretta Motion.

35.  I believe that the bench of Contra Costa County and Judge Brady in particular have been prejudiced from the outset by my letter containing a diary entry accusing Judge Kolin of taking a bribe, by my disqualification of Judges Dan & Mary Ann O'Malley, and the declarations I wrote accusing Judge Mary Ann O'Malley and Judge Dan O'Malley of inappropriately shuffling my case back and forth between their two courtrooms for a year, while I was incarcerated on a no bail status and my bail hearing was repeatedly continued by Judge O'Malley, and by my husband's status relative to my own. My husband was formerly Chief Psychologist for Alameda County. He claimed to have trained the Probation Dept. in Contra Costa County. Indeed, two of the probation officers assigned in the above referenced juvenile case by Judge Kolin, Shirley Bereeke and Nolan Oldhausen, were trained by my husband. Nolan Oldhausen was a long term client of my husband's.

36.  I was a housewife and a mother, I also managed our business affairs: apartments, my husband's billing and investments.

37.  Judge Dan O'Malley comes from a distinguished legal family. His father was a well known judge. I am informed and believe it is to be true that the O'Malleys are very influential in the county.

38.  De la Salle is a very well known Catholic school. Coach Ladaceur is somewhat famous and quite influential.

39.  Judge O'Malley acknowledged in court in October of 2004 being influenced by De la Salle parents.

40.  My bail, as noted above was set at $8,000,000 and on no bail status by Judge Brady, despite the fact that I had made all court appearances during the seven months I was no bail.

41.  The amount set betrays prejudice on Judge Brady's part. Judge Flinn, after having refused to reinstate my bail at a bail hearing and hear witnesses in my favor, set a bail of $1,000,000 for Scott Dyleski, the 16 year old accused of murdering Mr. Horowitz' wife, under the scheduled amount for a homicide charge.

42.  I believe given the above described prejudice extant in the county's bench and Judge Brady's courtroom in particular, I cannot receive a fair trial unless a judge from another county without ties to Contra Costa is appointed to preside over my case.

Signed this 12th day of January 2006 in Richmond, Cal.

Susan Polk

In the preceding declaration Susan Polk questions the objectivity of the courts and judges that have dealt with her proceedings prior to January 12, 2006.  In Paragraphs 2, 3, 4, 8, 16, 18, 19, 20, 21, 22, 23, 24, 25, 40, 41, and 42 she details the reasons she firmly believes that she cannot receive a fair trial before any Contra Costa County judge.

Married Judges Dan and Mary Ann O'Malley are singled out for criticism in paragraphs 8, 9, 10, 11, 12, 13, 14, 35, 37 and 39 in regard to  the no bail and no contact orders that the couple issued prior to both being recused from the case.

Polk's problems with her last attorney, Daniel Horowitz are addressed in paragraphs 30, 31, 32, 33 and 34.

Susan Polk apparently believes that third parties involved in various civil cases involving her and her sons have applied undue influence on her sons who will be key witnesses in her criminal trial.  These issues are cited in paragraphs 5, 6, 11, 26, 27, and 28.

Susan Polk has tried repeatedly to introduce documents that would support her position as exhibits in her murder trial.  Repeatedly Prosecutor Sequeira has objected to these documents as "hearsay" and these objections have been upheld by Judge Laurel Brady.

Perhaps the only way Susan Polk will be allowed to present her case will be in the court declarations and motions she files with the court clerk such as the one detailed above.

This, then, is what Susan Polk believes.  It is the other side of the story that you will not find in the mass media.

Virginia McCullough © March 27, 2006