Tuesday, October 25, 2016

Judge Allows Hearing, Intoxication Evidence in EPD Shooting Trial

Posted By on Tue, Oct 25, 2016 at 2:38 PM

  • Thomas McClain
Reversing course from his tentative ruling in the case, a federal judge has decided he will allow jurors to hear evidence that 22-year-old Thomas McClain had a hearing impairment and had been drinking when he was shot dead by a Eureka police officer in 2014.

A trio of Eureka police officers had McClain at gunpoint in the front yard of his Allard Street home on Sept. 17, 2014, when officer Steven Linfoot opened fire, shooting seven bullets, three of which hit McClain, who died at the scene. Police allege McClain was reaching for a realistic looking BB gun in his waistband, but McClain’s family is alleging in the federal wrongful death suit that McClain was complying with officers’ commands when Linfoot started shooting.

In a previous filing with the court, attorneys representing McClain’s family introduced a transcript of an audio recording of the incident, which indicates officers gave contradictory commands immediately prior to the shooting, with one telling McClain to keep his hands up as another told him to get down on the ground. (Read the transcript here.)

In a ruling filed with the court last week, U.S. District Judge William Orrick III said he will permit the city to introduce evidence that McClain was legally drunk on the night in question and will also permit attorneys for the McClain family to introduce evidence that he had a hearing impairment when the case goes to trial next month.

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Friday, October 14, 2016

Court Cracks Down on Skipping Jury Duty

Posted By on Fri, Oct 14, 2016 at 1:21 PM

The Humboldt County Courthouse in Eureka. - GRANT SCOTT-GOFORTH
  • Grant Scott-Goforth
  • The Humboldt County Courthouse in Eureka.
If you are among the estimated 75 percent of Humboldt County residents who have been ignoring a jury summons, the Superior Court may come a calling to let you know your time is up.

According to a press release sent out by the court this week, jury services staff have resorted to phoning service skippers and are setting up five-day standby lists in order to have enough jurors available for trials.

The release says the court could also look at sending deputies to “escort individuals to the courthouse for jury service and/or may issue an order to show cause for appearance at a court hearing.”

“Steps are now being taken because of the number of jury trials that must be heard,” court CEO Kim Bartleson says. “If jurors are not available, a case could be dismissed.”

Duplications in the 176,000 or so names on the master jury list, compiled from voter registration and Department of Motor Vehicle records, are filtered out before potential jurors are randomly selected for a summons, according to Bartleson.

For reference, Humboldt County has about 80,000 registered voters and a total population of 135,000, according to the U.S. Census. And to be able to serve, jurors must be at least 18, proficient in English and U.S. citizens who has not been convicted of a felony, although there are some exceptions to the latter.

About 200 summons are sent out for an average court day in Humboldt County, Bartleson says. The number of potential jurors needed for the selection pool varies depending on the number and type of cases up for trial. The issue is most people aren’t showing up.

“The drop in response rates has been an ongoing problem,” she says.

Take Wednesday, for instance: 600 jurors were summoned and 75 appeared for a response rate of 12.5 percent. That’s down from an average 51 percent jury yield back in 2012, according to data collected by the Judicial Council of California, the policy making body of the California courts.

The general goal for response rates is around 40 percent, according to Blaine Corren, a spokesperson with the council.

“Some courts, people report higher than others,” he says.

Jury response varies across the state with some California counties boasting rates as high as 87 (Colusa County), while others were as low as 5 percent (Nevada County), according to judicial council data from 2012 and 2013, the most recent available.

The statewide average came in at 57 percent.

With every batch of summons sent out, a certain number are expected to drop out due to deferments or being excused, as well as simply failing to show. Around 12 percent are estimated to never make it to the intended recipient due to outdated addresses or other mailing issues.

“The low average response rate makes it difficult for the jury commissioner to be confident that enough people have been called to appear: trials have been delayed by inadequate numbers of prospective jurors,” District Attorney Maggie Fleming said in an email to the Journal. “Of course, lengthening the process in this way reduces the number of cases we can try.”

In most cases a person is considered to have done their yearly service if they are not selected for a jury after one day at the courthouse. After serving on a jury, that timeline is expanded — at least in Humboldt County — to two years.

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Wednesday, October 12, 2016

Alcohol, Hearing Evidence May be Excluded in McClain Trial

Posted By on Wed, Oct 12, 2016 at 1:37 PM

  • Thomas McClain
SAN FRANCISCO  — A federal judge said Tuesday he is unlikely to permit evidence that a man shot and killed by an officer in Eureka two years ago was drunk and had hearing problems when the case goes to trial this November.

According to his parents' May 2015 lawsuit, 22-year-old Thomas McClain was complying with orders and had his hands up when Eureka Police officer Steven Linfoot opened fire on Sept. 17, 2014. Linfoot fired seven bullets, three of which hit Thomas McClain as he stood in his front yard on Allard Street.

The city claims McClain was reaching for something in his waistband — it turned out to be a BB gun — and that Linfoot acted appropriately to neutralize what he considered a potentially deadly threat.

Last month, U.S. District Judge William Orrick III denied the city's motion for summary judgment on excessive force and wrongful death claims, finding that one eyewitness contradicted Linfoot and the other officers' version of events, and that officer commands were unclear in a dash cam audio recording.

During a pre-trial hearing Tuesday, the McClain family's attorney, Dale Galipo, argued that allowing evidence that McClain was drunk at the time of the shooting would encourage speculation and prejudice the jury.

Nancy Delaney, a private attorney representing the city of Eureka, replied that evidence of McClain's drunkenness is necessary to explain the young man's irrational behavior and mindset.

"We have a young man, who reached for — if the officers are telling the truth — what we know was a replica gun," Delaney said. "That makes sense if the imprudent actions are of one under the influence of alcohol."

In a reply brief opposing the motion to exclude evidence of intoxication, the city cited testimony from one witness who said McClain was "very intoxicated" and consumed at least four or five drinks that night.

During the hearing, Delaney also cited a toxicology report, which found McClain had a blood-alcohol content of 0.13 percent, well above the legal limit for driving impairment of 0.08 percent.

"One of the things that makes sense here is you have someone that because of alcohol does the stupid thing of deciding, 'I'm going to end this and just show them it's not a real gun,'" Delaney said. "That can only be understood with the undisputed evidence that this young man had consumed a lot of alcohol."

Galipo responded by accusing the city of stretching the bounds of logic in an attempt to introduce prejudicial evidence at trial. He further contended that the city has offered no expert testimony to back up its theory that a drunken person would behave in such a manner.

"They have not retained a designated expert to talk about the effects of alcohol on a person," Galipo said. "There's a bit of a leap of logic that someone who has three to four to five drinks is going to reach for a replica gun."

Delaney argued to exclude evidence of McClain's hearing impairment as well, which she said could confuse the jury. Deciding whether the use of force is reasonable must be based on the officer's perspective at the time, Delaney said, and Linfoot did not know McClain had hearing problems during the incident.

Orrick seemed inclined to exclude evidence of both intoxication and hearing loss.

"I think the issue is what the officers knew at the time," he said. "They didn't know anything about the drinking or the hearing issue. I think there's some concern about prejudice with respect to the drinking."

Orrick reasoned that if he allows the jury to hear information that was not known to officers at the time of the shooting, such as McClain's intoxication, he would have to permit the inclusion of evidence on the hearing loss as well.

Delaney still pushed for the inclusion of the alcohol-related evidence. "If it's hearing impairment and alcohol, or no alcohol or hearing impairment, we'll take the former," she said.

The trial is expected to start on Nov. 14 at the Federal Courthouse in. Orrick said he expects the trial to wrap up within five or six days with the goal of giving the jury enough time to reach a verdict before Thanksgiving.

This story was reprinted with with the permission of Courthouse News Service.

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Public Defender to Retire, Judgeship Not Likely

Posted By on Wed, Oct 12, 2016 at 9:20 AM

Kevin Robinson, center front, with the rest of the Public Defender staff. - FILE
  • File
  • Kevin Robinson, center front, with the rest of the Public Defender staff.
After a decade on the job, Humboldt County Public Defender Kevin Robinson has informed the Board of Supervisors that he will be retiring in January.

In a short letter sent to the board last week, Robinson says his last day heading the Public Defender’s Office will be Jan. 20 and offers to assist with training his yet-to-be-settled-upon replacement. Robinson has been with the office for 22 years, having joined as a deputy public defender in 1994.

In an interview with the Journal last week, Robinson said he’s looking forward to slowing down and spending some time with his 8-month-old granddaughter, who lives in Davis. Other than that, Robinson said he’s not sure what retirement will hold for him. Some time back, he applied to be appointed by the governor for the judgeship that has been vacant in Humboldt since Judge Bruce Watson retired at the beginning of the year.

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Friday, September 30, 2016

Eureka Takes Police Video Fight to the Supreme Court

Posted By on Fri, Sep 30, 2016 at 3:18 PM

Since 2008, the Eureka Police Department has outfitted all of its patrol cars with Watch Guard cameras. Who gets to see the footage they collect remains up for debate. - PHOTO BY THADEUS GREENSON
  • photo by Thadeus Greenson
  • Since 2008, the Eureka Police Department has outfitted all of its patrol cars with Watch Guard cameras. Who gets to see the footage they collect remains up for debate.

The city of Eureka is trying to keep its recent appellate court loss from setting a statewide precedent.

In July, the First District Court of Appeals rebuffed the city’s effort to block release of a video depicting the arrest of a 14-year-old suspect, ruling that the video — and others like it — could not be considered a confidential police officer personnel record, which receive special protections against public disclosure. The appellate court published the ruling, meaning it would become case law and set a precedent throughout the state.

But the city has now petitioned the state Supreme Court to depublish the July decision, which wouldn’t impact the court’s order that the specific video in question be released but would keep the decision from becoming case law and guiding future court rulings. And, in a rare move, on its own motion, the Supreme Court has extended its deadline for deciding whether to take up a full review of the appellate case — a review that would venture beyond the publication question.

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Thursday, September 22, 2016

UPDATE: Judge Allows Budget Motel Evictions to Proceed

Posted By on Thu, Sep 22, 2016 at 10:35 AM

  • Thadeus Greenson
In a ruling filed this afternoon, a Humboldt County Superior Court judge has given the city of Eureka the green light to condemn the Budget Motel.

The motel’s owner, David Kushwaha, had asked the court to intervene and stop the city’s forced eviction of his tenants, which was initially scheduled to happen this morning, due to substandard conditions and more than 340 code violations. Through his attorney, Kushwaha asked the court to give him 45 days to address the violations, which include bedbug and cockroach infestations, hazardous wiring, inadequate plumbing and heating fixtures and a host of other things.

But Judge Dale Reinholtsen found Kushwaha had little chance of ultimately winning the case and that the alleged violations are “hazardous and pose an imminent threat to occupants of the motel and the surrounding community.”

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Tuesday, September 20, 2016

Lawsuit seeks hefty fines for 5 coastal commissioners

Posted By on Tue, Sep 20, 2016 at 6:24 PM

Del Norte County Supervisor Martha McClure is one of five coastal commissioners facing thousands — if not millions — of dollars in fines in a civil lawsuit alleging they failed to “disclose private, ‘ex-parte’ meetings with developers, lobbyists and other individuals” as required by law.

The lawsuit filed in San Diego Superior Court last month by the recently formed nonprofit corporation Spotlight on Coastal Corruption also names Commissioners Erik Howell, Wendy Mitchell, Mark Vargas and Steve Kinsey, who serves as the board’s chair.

"We have documented a shocking pattern of under-reporting of ex-parte communications with five Commissioners," said attorney Cory Briggs, who is representing Spotlight, in a statement on the group’s website.

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Saturday, September 17, 2016

No Charges in Fatal June Crash

Posted By on Sat, Sep 17, 2016 at 4:12 PM

Humboldt County District Attorney Maggie Fleming. - SUBMITTED PHOTO
  • Submitted photo
  • Humboldt County District Attorney Maggie Fleming.
The Humboldt County District Attorney's Office has opted not to pursue criminal charges against a 21-year-old woman who lost control of her truck on State Route 299 in June, killing a hitchhiker she'd picked up earlier in the day.

The California Highway Patrol arrested Adryan Nicole Pollock, of Eureka, on June 16 at the scene of the crash, after she'd lost control of her Dodge pickup, causing it to roll and eject Hugh Grant Jr., 78, of Klamath, who wasn't wearing a seatbelt. Grant was pronounced dead at the scene.

CHP Sgt. Jeff Borgen said the responding officer decided to arrest Pollock on suspicion of vehicular manslaughter in an abundance of caution, in part because Pollock didn't have "satisfactory identification" with her and there was some question about her identity. 

In an email to the Journal, District Attorney Maggie Fleming explained that evidence in the case indicates Pollock swerved her truck to avoid an oncoming vehicle that had crossed over into her lane, resulting in the rollover crash that ejected Grant. Neither alcohol nor drugs were believed to be a factor.

"We concluded this was a tragic accident that did not involve criminal liability," Fleming wrote.

See past Journal coverage of the accident here.
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Thursday, September 15, 2016

UPDATE: Court Document Indicates Kitchen was 'Extremely Intoxicated'

Posted By on Thu, Sep 15, 2016 at 11:37 AM

Marcia Kitchen's booking photo.
  • Marcia Kitchen's booking photo.
Marcia "Marci" Kitchen pleaded not guilty to both charges facing her this afternoon and denied all special allegations during a brief arraignment. She's next scheduled to appear in court Sept. 29, with a hearing set Oct. 6 to determine if there is enough evidence to hold her to stand trial in the case.

According to a criminal complaint filed by the Humboldt County District Attorney’s Office, Marcia “Marci” Kitchen has been charged with one count of vehicular manslaughter without gross negligence and one count of DUI causing injury. She also faces special allegations related to there being multiple victims and her fleeing the scene of the crash.

A statement of probable cause compiled by DA investigator Adam Jager in order to get a warrant for Kitchen’s arrest sheds additional light on the case. According to the document, Kitchen was seen returning to her residence minutes after the collision in her gray Jeep Wrangler, which police later found concealed behind a fence in her backyard less than two miles from the crash scene on Eel River Drive. “Within 10 minutes,” Kitchen returned to the scene of the crash, where multiple officers observed that she was “extremely intoxicated,” according to the document.

“During the lengthy investigation, it was determined that Marcia Kitchen was in fact the driver of the Jeep when it struck the two pedestrians, one being her daughter,” Jager’s statement reads. “This is based on the following facts: The vehicle is registered to her, it was located concealed at her residence, the Jeep’s driver’s seat was adjusted for someone of her stature, there is physical evidence that confirms the Jeep is in fact what struck the victims and Kitchen made statements to friends and family after the collision that she is the one who was driving her Jeep when the pedestrians were struck.”

Kitchen is scheduled to be arraigned in the case this afternoon and is free after posting $750,000 bail.

Marcia Maelinda Kitchen, who also calls herself Marci Marz. - FACEBOOK
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  • Marcia Maelinda Kitchen, who also calls herself Marci Marz.
Marcia "Marci" Kitchen, a Fortuna woman suspected of being the driver in a July hit and run crash that killed her daughter and another teenage girl, was booked into the Humboldt County jail Wednesday on suspicion of vehicular manslaughter while intoxicated. She was released after posting bail, according to the Humboldt County Sheriff's Office's online booking sheet.

Kitchen has been the focus of a two-months-long investigation by the California Highway Patrol since the days following July 12, when her 14-year-old daughter Kiya Kitchen and her friend, Faith Tsarnas, also 14, were struck and killed while riding skateboards on Eel River Drive just after 9 p.m.

Kitchen posted bail at 9:18 p.m., according to the booking sheet, on a warrant issued by the Humboldt County District Attorney's Office for a suspected violation of penal code section 191.5(b), vehicular manslaughter while intoxicated. Kitchen's attorney, Ben Okin, said she surrendered to authorities as he repeatedly said she would in the event a warrant was issued for her arrest.

For background on the case, see past Journal coverage here. We'll update this post with additional information as we get it.

Press release from the Humboldt County Sheriff's Office (Note: the press release incorrectly states one of the charges facing Kitchen, as she was charged with vehicular manslaughter without gross negligence):

On behalf of the Humboldt County District Attorney’s Office, the Humboldt County Sheriff’s Office is providing the following information in regards to the arrest of Marcia Maelinda Kitchen, dob 8/27/1977, from Fortuna.
On Wednesday, September 14th Kitchen self-surrendered to the DA’s Office on a Ramey warrant. Kitchen was booked into the Humboldt County Correctional Facility at 8:09 p.m. for the following charges: gross vehicular manslaughter while intoxicated, driving under the influence and causing bodily injury to another person, fleeing a crime scene, causing great bodily injury in commission of a felony, and for causing bodily injury or death to more than one victim while driving. Her bail was set at $750,000 and was posted at 9:18 p.m. Kitchen will be arraigned today, September 15th at 1:30 p.m. at the Humboldt County Superior Court.
Any further information regarding this case should be directed to the Humboldt County District Attorney.

Editor's note: This post was updated from a previous version to correct an error regarding the penal code section Kitchen is alleged to have violated and the time she posted bail.
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Friday, September 9, 2016

Prelim Set in Infanticide Case

Posted By on Fri, Sep 9, 2016 at 10:32 AM

A selfie with Misztal and her baby, posted Aug. 5. - FACEBOOK
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  • A selfie with Misztal and her baby, posted Aug. 5.
The mother of a baby girl who died after being taken to Mad River Hospital with what police described as severe skull fractures remains in jail on $1 million bail after pleading not guilty to causing the injuries that led to her daughter’s death.

District Attorney Maggie Fleming said in an email to the Journal that a Sept. 14 preliminary hearing has been set for Ewa Misztal, a 28-year-old Polish national.

Misztal was living in an Arcata apartment on the 400 block of Union Street with her 7-week-old daughter, whose name has not been released by authorities, when the injuries occurred.

Arcata Police Department Detective Sgt. Todd Dokweiler said a neighbor called 911 around 11:30 a.m. on Aug. 27 after Misztal went to them for help because the child was not breathing.

Dokweiler said an officer administered CPR to the baby in the ambulance on the way to the hospital, but the department was notified about 30 minutes later that the child had not survived.

“There were skull fractures found and they were fairly significant,” he said. “So, in our investigation, that would be suspicious in nature for a child of that age.”

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