THE SUSAN POLK MURDER TRIAL -- WITNESS TAMPERING?
by Virginia McCullough
On February 27, 2006 Susan Polk was sitting at the defense table in a Martinez, California courtroom preparing to act as her own attorney defending herself against a first degree homicide charge levied against her by the Contra Costa County, California prosecutor. Three years and four months had passed since the body of her 70-year-old husband Dr. Frank Felix Polk was found in the pool house of the family's multi-million dollar estate in Orinda, California. Felix Polk, alleged member of the Mossad and father of five, was found laying on his back clad only in black, brief-type underwear. He had numerous wounds to his chest and left side. (Click to Report of Autopsy of Frank Felix Polk dated 11/9/02.)
The date of death was October 14, 2002 but the time of death was unknown. Only two people were determined to have been present on that fateful day: Felix's wife of twenty years, Susan, and the youngest of his three sons by Susan, Gabriel. At the time of his death the Polks were engaged in a bitter divorce and custody battle.
Susan Polk was arrested the same day for her husband's murder and arraigned on October 17, 2002. On September 10, 2004, after a lengthy bail hearing, Judge Mary Ann O'Malley granted bail to Susan Polk. The amount set was $1,050,000.00. Five days later, on September 15, 2004 Judge Mary Ann O'Malley's husband and a judge in the same courthouse, Judge Daniel O'Malley ordered the defendant to stay away from witness and son Gabriel Polk as one of the terms and conditions of her bail. Because of an alleged violation of this specific condition, Susan Polk's bail was revoked and she was again jailed, where she remained until her trial began.
Susan Polk has gone through four sets of attorneys on her long path to self-representation. The first three counselors would not allow Susan to present a case based on pure self defense, which was her choice. The final attorneys to represent her were high-profile, defense attorneys Daniel Horowitz and Ivan Golde. After promising mother Susan Polk to be very gentle with her youngest son, Gabriel, and agreeing to a self defense strategy Polk hired the Horowitz/Golde team.
(Click to "Susan Polk Lawyers Up" 8/30/05.) Susan's first trial began Tuesday, October 11, 2005 (Click to "Opening Statements in the Susan Polk Murder Case" 10/11/05.)
The following Saturday, October 15, 2005 attorney Daniel Horowitz arrived home after working all day on the Polk case. He opened the front door of his home and discovered his wife Pamela Vitale brutally murdered. The national and international media immediately descended on Contra Costa County, California and, shortly thereafter, Judge Laurel Brady declared a mistrial in the murder trial of Susan Polk.
For awhile it appeared as if Daniel Horowitz would attempt to mask his horrible grief over his wife's slaying and continue to represent Susan Polk. But in January, 2006 it became apparent that Susan Polk was once again dissatisfied with her attorneys and she asked the court to remove the Horowitz/Golde team and allow her to represent herself. In dismissing Daniel Horowitz just months after his wife's death, Susan Polk implied on national television that Horowitz had told her something which led her to believe that he had something to do with his wife's murder.
Following their removal, Ivan Golde said it was a very sad day and that he hoped Susan would receive a fair trial. Daniel Horowitz, looking ashen in the hallway outside the courtroom that day, simply said, "It is Susan's story. She lived it and she wants to tell it. She has the absolute right to present her own defense."
Between the time that Horowitz and Golde became Susan Polk's defense attorneys in August of 2005 and the time they were relieved as counsel in the middle of January 2006, they filed a flurry of motions to defend their client. Several of their motions were upheld by trial Judge Laurel Brady. However, the most important motion that the Horowitz/Golde team filed was file stamped September 28, 2005. An unimpeachable source told this reporter that Judge Brady had denied that motion asserting witness tampering on or before October 8, 2005, just days before opening statements were presented to the jury.
Who did Daniel Horowitz allege was engaged in witness tampering in a first degree murder case of a woman who claimed her abusive husband ended up dead after he attacked her with a knife? Unlike most attorneys Daniel Horowitz and Ivan Golde do not write in riddles and/or in legalize. Their motions are written plainly in a common language understood by everyone. They are also not shy in naming names and citing events that lead to their allegations. In this motion you will find the following names:
Attorney Budd MacKenzie
MacKenzie's client, Felix Polk's twin brother John Polk
Attorney Rick Bowles
Attorney Pamela Ty (law associate of Rick Bowles)
Deputy District Attorney Tom O'Connor (prosecutor in the first aborted trial of Susan Polk)
Also mentioned are the two young men who testified against their mother during the prosecution's case, 23-year-old Adam Polk and 18-year-old Gabriel Polk. These two individuals who consistently referred to their mother as "you" and constantly called her "delusional" or "crazy" were represented by Rick Bowles and Pamela Ty in a wrongful death suit against Susan Polk. During the course of their testimony it became clear that lawsuit was settled just before they took the stand for an undisclosed amount of money. Readers will also find the following two names in the Horowitz motion:
Daniel Horowitz, in keeping with his commitment to his client Susan Polk, treated both boys with gentle adjectives and described their actions and their words as having been made in fear for their own future and survival. This reporter, having heard the disrespectful, hateful words dripping from the sons' mouths for the past several weeks would not have been so kind.
The entire motion by Daniel Horowitz alleging witness tampering and denied by Judge Laurel Brady follows:
THE SUPPLEMENT TO MOTION ALLEGING WITNESS TAMPERING
The defense is asserting that a bribe is being solicited. Alternatively, that an extortion is taking place. Either Susan Polk settles the wrongful death civil lawsuit or two things happen:
A. The house will be sold October 1, 2005. (This now appears to have been a bluff.)
B. Adam Polk and Gabriel Polk will testify with great anger and fear about the financial "situation". (See attached e-mails)
Defense counsel immediately informed this Court of the wrongful conduct of attorney Budd MacKenzie as he misrepresented the status of the Orinda house and then attempted to convince attorney Ivan Golde to force Susan Polk to settle the civil case in order to save the house. Ivan Golde's great generosity called this bluff as Ivan offered his own money to take the house out of foreclosure. Then, and only then, did Budd MacKenzie admit to Ivan Golde that the house was not going to be sold October 1, 2005. Budd MacKenzie had taken a legal fee from Susan Polk's assets (as described during her Faretta motion) and he has no stake in the civil suit. His conduct is highly improper.
Just days after defense counsel warned the court of this conduct and called it witness tampering, the other shoe dropped. A settlement "offer" was made by the civil attorney handling the wrongful death case. Such an offer had to have been approved by Adam and Gabriel Polk as they are both now adults.
Thus, in two days time, pressure was exerted by Budd MacKenzie to settle or lose the house and then, just two weeks before opening statement, Adam Polk and Gabriel Polk made their money demand.
On September 26, 2005, Adam Polk admitted to defense investigator Kent Brezee (Berkeley Police Dept. Ret.) that he knew that the house was not in danger. We do not know about Gabriel Polk.
AN ATTORNEY MAY BE CHARGED WITH WITNESS TAMPERING FOR TRYING TO
MAKE A CIVIL SETTLEMENT WITH A WITNESS
If defense counsel Golde had gone along with Budd MacKenzie instead of preparing a declaration and having Horowitz file the original motion with this Court, he may well have been guilty of bribery or witness tampering.
In People v. Furr, Not Reported in Cal. Rptr. 2d, 2003 WL 499032, Nonpublished/Noncitable, (Cal. Rules of Court, Rules 976, 97), (Cal. App. 3 Dist. Feb 26, 2003) an attorney was prosecuted on the theory that the attorney conspired to dissuade a witness from testifying. The defense was based upon the theory that there was an offer by the attorney to offer the crime victim money but it was done with the intent not to dissuade her from testifying, but with the intent to meet his professional responsibility to investigate the possibility that her rape claim was manufactured, or to achieve a settlement of her civil claims in a manner beneficial to his client.
Unpublished or not, the facts are quite a warning. Defense counsel called the prosecutor the very day that the conduct by MacKenzie took place. All information was communicated. Ivan Golde and Daniel Horowitz are again telling the Court at the very earliest opportunity about this further financial demand. (Notice was given to Horowitz by the insurance company attorney, Roger Allen, on September 26, 2005. Susan Polk will learn of the offer September 27, 2005 when she reads this motion.)
THE CRIMINAL TRIAL IS TAINTED BY THIS CONDUCT
Financial motive is a classic basis for impeaching a witness under Evidence Code S 780. See e.g. Manwell v. Board of Home Missions and Church Extension of Methodist Episcopal Church (App. 1932) 122 Cal. App. 599; Calvert v. State Bar (1991) 1 Cal. Rptr. 2d 684, 54 Cal. 3d 765. It is a fundamental aspect of the confrontation clause of the Sixth Amendment
In addition, third-party efforts to influence a witness may be relevant and admissible under Evidence Code, S780, subd. (f) as the defense can show the "existence or nonexistence of a bias, interest, or other motive." The defense is not limited to the personal feelings of Gabriel Polk or Adam Polk. The defense can inquire into this entire nefarious affair involving the MacKenzie deception and the civil lawsuit settlement demand. The orchestration of these demands by attorneys does not change the fact that Adam Polk and Gabriel Polk had to approve the settlement demand by their civil attorney.
The manner by which the screws were tightened to force this settlement becomes a matter of great concern as Budd MacKenzie (despite taking after from Susan Polk) represents the estate representative, John Polk, brother of the decedent and Rick Bowles represents Gabriel and Adam Polk.
DDA O'Connor has stated that Budd MacKenzie has called him approximately ten times. Rick Bowles has also made contact. They are case vultures but they are also now case participants as the very witnesses against Susan Polk have used these two attorneys to make monetary demands as the trial begins.
The entire relationship of Budd MacKenzie and Rick Bowles to this case, to the witness' bias, motive and state of mind in testifying is at issue and has to be admitted in its entirety.
Evidence tending to show a substantial reason for bias or interest in an important witness is never collateral or irrelevant. (Barnard v. United States, 342 F.2d 309, 317 (9th cir. 1965) .
For "(t)he partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence s 940, p. 775 (Chadbourn rev. 1970)." (Davis v. Alaska, 415 U.S. 308, 316, 94S.Ct. 105, 110, 39 L.Ed.2d 347 (1974) [Copy previously provided to court and to DDA]
The Polk defense team must be permitted to fully and completely demonstrate the extent of the bias or interest of Adam Polk and Gabriel Polk and in doing so must be "permitted to expose to the jury the facts from which jurors, as the sole tiers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." (Davis v. Alaska, supra, 415 U.S. at 318).
Rick Bowles and Budd MacKenzie have injected themselves into this case in a destructive manner and they cannot hide behind "attorney-client" privilege. They are witnesses. Their conduct has tainted this trial and there must be a full inquiry into what they have done to these two witnesses. In People v. Hammon, 15 Cal.4th 117 at pp. 123-1124, our state Supreme Court acknowledged the Davis court's holding "that a criminal defendant's right to confront adverse witnesses sometimes requires the witness to answer questions that call for information protected by state-created evidentiary privileges." Susan Polk's defense team did not create this morass of manipulation. It was a staged pressure play on the eve of trial against a vulnerable defendant using her own children as tools of their conduct.
THE FINANCIAL MOTIVE
An expert, or at least more than one night's research, is necessary to fully explore the outcome benefits to Gabriel and Adam Polk of a conviction. But, in general, an acquittal will obviously hurt the civil case although some sort of general negligence theory may allow the suit to continue:
A conviction for murder in any degree will shift all estate assets from Susan Polk to her children.
(a) A person who feloniously and intentionally kills the decedent is not entitled to any of the following:
(1) Any property, interest, or benefit under a will of the decedent, or a trust created by or for the benefit of the decedent or in which the decedent has an interest, including any general or special power of appointment conferred by the will or trust on the killer and any nomination of the killer as executor, trustee, guardian, or conservator or custodian made by the will or trust. (Probate Code S 250)
Manslaughter is not as clear as the issue in S 250 is intent to kill and that type of analysis with respect to manslaughter may vary depending upon theories of manslaughter advanced. There is an interesting issue as to whether Gabriel and Adam benefit by claiming that Susan Polk is mentally ill as such illness may allow an intentional killing but still invoke insurance coverage as it's not the same type of "intentional" act is excluded from coverage.
Any conviction may allow a recovery beyond policy limits and attach both the estate assets and all of Susan Polk's assets. The only negative financial result for Gabriel and Adam Polk is if Susan Polk is acquitted.
In addition, any criminal conviction will allow Adam Polk and Gabriel Polk to recover attorney's fees under CCP 1021.4 which reads:
In an action for damages against a defendant based upon that defendant's commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney's fees to a prevailing plaintiff against the defendant who has been convicted of the felony
So, in the end, a criminal conviction of any type will shift all assets from Susan Polk to Adam Polk and Gabriel Polk with Eli Polk receiving his 1/3 share of his father's estate. If there is a murder conviction there is the potential for a loss of the insurance policy coverage but there is the guarantee that Adam and Gabriel Polk will both inherit their father's estate in full and still be able to go after their mother's assets.
These motives alone were enough for impeachment but now we have much more. Budd MacKenzie and Rick Bowles, with his client's consent, have demanded money just before trial under two different justifications, one fraudulent and the other inappropriate given the timing, but perhaps within the realm of Mr. Bowles' world of civil law. These actions ultimately read as bribery or the appearance of bribery and constitute extortion or have the appearance of extortion.
The witnesses are young and vulnerable. If police officers engaged in this type of conduct this counsel suggests that the case would be thrown out for misconduct. The fact that two attorneys have so muddied up this case does not change the basic analysis. Have these witnesses been so tainted that Susan Polk cannot get a fair trial? Just what has taken place and how has this criminal trial been tainted (or how will it be tainted) by this conduct?
THE WITNESSES ARE TREMENDOUSLY VULNERABLE TO MANIPULATION
The defense incorporates by this reference its SUPPLEMENTAL AUTHORITIES IN SUPPORT OF THE RELEASE AND ADMISSION OF PSYCHOLOGICAL EVIDENCE and POINTS AND AUTHORITIES IN SUPPORT OF THE USE OF DEFENSE EVIDENCE OF FELIX POLK AND SUSAN POLK'S MENTAL STATES. Regardless of how this Court rules on those issues, the motions contain extensive evidence showing the extraordinarily difficult times these young men had growing up with a severely delusional father. His death and the arrest of their mother must be unimaginably difficult for them.
Budd MacKenzie, Rick Bowles, and others have exclusive access to Gabriel Polk and almost exclusive access to Adam Polk.
Their conduct in manipulating the house and this criminal case for financial benefit is intertwined with an overriding emotional and psychological fear of abandonment by Adam and Gabriel. This fear has been exploited and now irreparably taints our criminal case.
The extreme fears of Gabriel and Adam Polk are evident in many documents.
Exhibit S-2 an e-mail from November from Gabriel Polk to Eli Polk.
Your crazy. Mom's crazy. Keep sending me all the bullshit emails you want, they are entertaining. Trying to dissuade me from suing mom into the ground is futile. Eli, when your 30 and living on the streets with no money because you spent it all and don't even have a high school education nor the willingness to get a job, don't come crawling to me or Adam. You've gone too far with all of this, to the point that our kinship is somewhat regardless. You've chosen to lead a difficult and perilous life. Be happy, you probably feel like you made the right choice. At this point I no longer care if you're just a "confused kid" or that you inherited mom's psycho gene. You've dug yourself a mighty big whole, and no one is willing to help pull you out. Have fun living in Mom's world, you crazy son of a bitch. (Gabriel Polk E-Mail, Exhibit S-2, Emphasis added)
Susan Polk has made it very clear in her letters and in her communications with the Contra Costa County Superior Court that she is gravely concerned with the people surrounding her son Gabriel. She did not give custody to the Briners and, contrary to the in court assertions of DDA O'Connor, Gabriel Polk was not emancipated when he was contacted by Susan Polk. To the contrary, Susan Polk was out of custody when Gabriel was filing for emancipation.
As can be seen by the above e-mail, Gabriel Polk is incredibly emotional about these issues. He is terrified and Budd MacKenzie and his civil attorney have an ethical responsibility to treat a young witness who is experiencing that much fear with "kid gloves".
To not do so is irresponsible and it has now tainted the criminal case.
The money fears are prominent in the mind of Adam Polk. He is greatly conflicted by his dependence on his mother and influence of Budd MacKenzie, Rick Bowles and DDA O'Connor.
Exhibit S-3 are two pages from an e-mail from Adam Polk. He thanks his mother for helping out financially in December, 2003. He then tells her that she is no longer the mother she once was and that:
"I wish no further contact with you whatsoever. Please do not contact me by phone or email as all contacts will be forwarded to my attorneys, Budd and the D.A."
The fact that Adam Polk would forward e-mails to these three people, sue his mother and yet still ask her for financial help is a sign of great uncertainty and confusion on his part. DDA O'Connor had to be aware of some degree of influence by MacKenzie, Bowles and others on Adam Polk:
As far as my civil case is concerned, the only manner by which you will avoid it is by granting my unlimited and irrevocable powers with regard to the liquidation and disbursement of ALL ASSETS...(Emphasis in original)
The financial demands, the connections of Adam Polk with Budd MacKenzie, his civil lawyer and "the D.A." completely blur the lines of this criminal case and the civil litigation. Susan Polk didn't initiate this contact. Adam Polk asked his mother for money and she gave it to him. When he felt differently, he demanded all of her money and told her that any response on her part would be communicated to the two civil attorneys and the prosecutor.
DDA O'Connor should never have cooperated with Budd MacKenzie or Rick Bowles. But he did, and we are now reaping the onerous harvest of that indiscretion. He should have told them to keep away from his criminal case and to not interfere with the witnesses. He should have read them Penal Code S 136.2 with as much vigor as he read it when he sought to have Susan Polk's bail revoked.
He had a double standard and it now has come back to haunt him because the civil attorneys are acting like they had a green light to feed on this case like ants on picnic lunch. The wolves came to Tom O'Connor's door and he opened it up and let them in.
GABRIEL IS PARTICULARLY SUSCEPTIBLE TO FINANCIAL FEARS
Gabriel is not safe, he is not secure, and he is not being protected. He is a child of a battering, delusional father. He is the son of a father who wrote the following:
"Programming. Most extreme forms come from cults, in ritualistic child abuse. It is very sophisticated. It is systematic and complete. In fact, some cults were set up by CIA as a way to learn/teach mind control...."
He is the son of a father who paraded around his older brother at meetings in Berkeley announcing that his son had been taken by homosexual cultists, sodomized and filmed. (Investigator Kent Breeze has seen the video of this).
His father is dead and his mother arrested. He was and is very, very frightened. The result is an incredible focus on financial security because he has no security whatsoever. This made him then and makes him now very vulnerable to exploitation by those around him.
As shown by S-4, Gabriel Polk is particularly susceptible to terror of being left without financial support. We understand that this is a metaphor for being alone in the world, nevertheless, it makes him vulnerable to manipulation. After his police interrogation is over, Gabriel is put on the telephone with his brother Adam. As soon as the room is clear he says:
GABRIEL POLK: Mom fucking shot dad with a shotgun. Yeah. Fucking crazy bitch. We still have an apartment house. We still have an apartment. We get income. Yeah, we are (inaudible). We can keep it, I think. Dad left us a pile of (inaudible), that's for sure.
As soon as the call ends, a sheriff's deputy comes in and talks to Gabriel about getting him a sleeping bag and a pillow. Gabriel again starts asking about the family assets. The concern for the assets seems to befuddle the officer.
SHERIFF OFFICER: Carl? Right. Yeah, we are going to have to get you a sleeping bag and a pillow for now, and we will resolve this as soon as we can. Get you someplace more comfortable. All right?
GABRIEL POLK: I would like to know what is going to happen to us financially.
SHERIFF OFFICER: Financially? What do you mean?
GABRIEL POLK: (Inaudible) in Berkeley, and I don't know what's going to happen right now, but I would like to hold onto that, because we need a source of income.
This is fear speaking. This is how desperately frightened Gabriel was and still is. Susan Polk can testify at trial and explain why. This fear of abandonment was a tool that Felix Polk used to control his children. Budd MacKenzie's handling of the estate made the fears even more real. The one piece of financial security for Gabriel Polk was the income-producing apartment building. What did Bud MacKenzie do? He sold the building.
As this Court knows from what Susan Polk stated in her Faretta motion, Budd MacKenzie took control of the estate and liquidated the apartment building on Arch Street at a low price and, in doing so, left nothing to provide for payments on the Orinda house. This created a real economic problem and vastly compounded Gabriel's uncertainty. The defense, through Susan Polk and documents in her possession, can show how Budd MacKenzie encouraged the filing of the civil lawsuit.
Simple attorney logic says: If Felix Polk tried to kill Susan Polk and she defended herself, shouldn't the lawsuit have been filed against Felix Polk? If it was mutual combat shouldn't the lawsuit have been filed against both? If an attorney didn't know, should he have sued both?
However, Budd MacKenzie and Rick Bowles chose a side and cuddled up to the prosecution so that they would have an easy right (they thought). Just let DDA O'Connor get the conviction and they win. They took sides and, in doing so, pushed two very vulnerable young men to take sides as well.
There has been a pattern of currying of the children/young adults and an alienation process that did not exist initially. Susan Polk's Faretta motion detailed how her children were separated from her. Now, the Court has been given more of the picture. The separation was also a handing over of control of these two young men to MacKenzie and Bowles. A commonality of interests was shared by DDA O'Connor, MacKenzie and Bowles making it easy for them to cooperate both explicitly and implicitly. DDA O'Connor should not have stood by and let this manipulation of witnesses take place. But he did.
IVAN GOLDE PREVENTED A MISCARRIAGE OF JUSTICE
If not for the fortuitousness of Ivan Golde's generosity in being willing to save the house from foreclosure, Susan Polk may have made the choice to pay the "bribe" in order to save the asset that she want to preserve for the sake of her children. Defense counsel in this case do not have input on the civil case. What would the result have been if Gabriel and Adam Polk had received money and softened their testimony at trial? DDA O'Connor would have used the civil settlement to claim that Susan Polk had bribed or influenced or paid off her children. The house pressure was also aimed at Eli. If Eli Polk thought that the house would be lost due to his mother's failure to settle the civil lawsuit, he may have applied pressure on her as well. However, Eli Polk is made of stronger fiber than that. He did, however, waste hours trying to save the house from a foreclosure which was never even truly happening.
The MacKenzie part of this manipulation would never have been fully uncovered except for Ivan Golde's kind and generous offer of his own money to save the house from foreclosure. During that process, the full extent of Budd MacKenzie's involvement with the civil lawsuit and his willingness to misrepresent the status of the house was discovered.
DDA O'CONNOR IS PRESENTLY IN VIOLATION OF HIS ETHICAL DUTIES
This is not a rugby match. This is a murder trial and very serious witness tampering has been taking place over a series of months. It is not acceptable for DDA O'Connor to sit back and watch.
DDA O'Connor may never have had a case with these issues but the defense has provided him with the case authority and it comes from the U.S. Supreme Court and the Ninth Circuit. He has to immediately and vigorously investigate this witness tampering and get to the bottom of it.
Under Bowie et al. (cited in the original brief), DDA O'Connor must take action. This interference with witnesses in as much DDA O'Connor's concern as it is the Courts and defense counsel. This is the law and the Ninth Circuit in Bowie explained why.
It does not take much witness tampering to destroy a trial. We have evidence here of witnesses who are focused on the civil lawsuit and extensive interaction with and intervention in this criminal case by two civil lawyers. The defense is seeking an inquiry as to the effects of this on the trial.
Despite this Court's explicit order that even non-written contacts with witnesses be reported, DDA O'Connor has not provided information regarding his contacts with MacKenzie or Bowles.
This information is classic Brady material. The contacts show a financial interest by the key witnesses an in Brady v. Maryland (1963) 373 U.S. 83, the failure to provide such impeachment material was a violation of his fundamental right to a fair trial.
(Cf. In re Sassounian (1995) 9 Cal. 4th 535, 543.) There are literally dozens of similar state and federal citations.
When the defense first brought this matter to this Court's attention in its filing, it included the following:
"The defense has received no discovery of any communications between the prosecution, its investigators and any of the following persons:
Pamela Ty (law associate for Rick Bowles)
In Roland v. Superior Court 124 Cal. App. 4th 154 (3rd Dis. 2004) the Court of Appeal held that both parties, defense and prosecution must provide statements of potential witnesses even if these statements have not been reduced to writing.
For all the reasons stated above, the trial court correctly ordered Roland's counsel to disclose to the prosecutor all relevant statements made by witnesses, other than Roland, whom the defense intends to call at trial, including unrecorded oral statements relayed to defense counsel by a third party in an oral report, and oral statements made by a witness directly to Roland's counsel. (Roland at 167-168)
Nothing has been provided.
The defense asked for and demanded a prosecution inquiry citing N. Mariana Islands v. Bowie, 243 F.3d 109 (9th Cir. 2001)
"Without a doubt, the record in this case establishes bad faith as a matter of law on the part of the Attorney General's office in refusing to investigate the potentially exonerating evidence that its own witnesses were conspiring to commit perjury. (Bowie at 1091)
This was not an option offered like a choice on a menu. The prosecution has no option, it had to investigate then, it has to investigate now, and it has to disclose. It has done nothing. As Bowie states:
Therefore, regardless of whether defense counsel should have known that a state witness testified falsely, "[a] prosecutor's 'responsibility and duty to correct what he knows to be false and elicit the truth,' Napue, 360 U.S. at 269-70, 79 S. Ct.. 1173, 3L.Ed. 2d 1217, requires [him] to act when put on notice of the real possibility of false testimony." (Bowie at 115)
If there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury," the conviction must be set aside. United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct.. 2392, 49 L.Ed. 2d 342 (1976). The defense is raising the issue now and there is no excuse for the prosecution to sit on its hands and enjoy the show. What is taking place is a constitutional outrage and for the prosecution to sit idly by and let it happen is unconscionable.
In People v. Hudson, (1934) 137 Cal. App. 729 it was held to be an abuse of discretion to deny a motion for a new trial when witnesses were coached while awaiting their opportunity to testify.
If the affidavits that were presented upon motion for new trial are true-- and they were uncontradicted -- they show a tampering with the witnesses; that is, at least a coaching of the witnesses at a time when they were awaiting their opportunity to be called, after they had been excluded from the courtroom and had been instructed by the court not to discuss the cause among themselves or discuss their evidence. The facts, as set out in these affidavits, were not known to the defendant or to his attorney until after the cause had been submitted to the jury. The testimony of the two prosecuting witnesses, as to the acts charged, was in some respects extremely improbable. In view of these circumstances, we believe that it was an abuse of discretion on the part of the trial court to refuse to grant defendant's motion for a new trial. (People v. Hudson, (1934) 137 Cal. App. 729, 730)
Ethically, defense counsel and Susan Polk must raise this issue. If these witnesses support Susan Polk at trial, the prosecution would argue that the settlement was a bribe relevant to that witness's credibility. This is true even if the settlement is done by civil defense counsel and regardless of whether the defendant was involved. (People v. Sanchez (1997) 58 Cal. App.. 4th 1435, 1449-1450: People v. Olquin (1994) 31 Cal. App. 4th 1355, 1369-1369: People v. Gutierrez (1994) 23 Cal. App. 4th 1576, 1587-1588.)
Counsel asks for a full evidentiary hearing and asks that during the next week a special master or judge be appointed to conduct hearings into this witness tampering issue. Counsel further repeats his request for discovery on this topic based upon both the due process cases and this Court's order that witness statements (even if not previously memorialized in writing) be prepared. The defense makes this request with respect to the parties to this witness tampering inquiry.
Signed: Daniel A. Horowitz
Dated: September 27, 2005
The end of said motion.
Just before the February 2006 trial wherein Susan Polk now represents herself began, Deputy District Attorney Tom O'Connor resigned from the Contra Costa District Attorney's office. The number two man in charge of that office, Paul Sequeria, assumed the position as the prosecutor in the Susan Polk murder trial. When asked at the close of his case whether or not the District Attorney's office had investigated the conduct of former prosecutor Tom O'Connor, the answer was, "No."
The denial of the motion by Judge Laurel Brady without the requested full evidentiary hearing or the appointment of a special master or judge to conduct hearings into the witness tampering issue, might well come back to haunt this court regardless of the jury's verdict. It is not necessarily true that "whatever happens in Contra Costa County, stays in Contra Costa County." The Supreme Court of the United States has twice reminded the County of that in the past year.
Virginia McCullough © 4/23/06