Recusal perusal
Batterham defense takes legal shots at DA’s office, requests a new “old” trial
If the Sara Batterham legal drama was ever picked up by Hollywood, perhaps the popularity of the soap opera genre could be revived for television.
On Tuesday, the scope of teh Batterham saga widened considerably during a series of hearings in Mono County Superior Court in Bridgeport, encompassing 5 motions, in front of 3 judges (including consultation by Judge Stan Eller), 2 courtrooms and 1 representative from the Attorney General’s office.
Sara Batterham was convicted on Nov. 16, 2011 on three of five charges, including embezzlement, one of two forgery counts, and preparing and submitting false documents for trial.
Sara was arrested on Aug. 30, 2007, along with her husband, Colin Batterham, for diverting almost $11,000 in transactions from Surat Singh, owner-operator of the Mammoth Econo Lodge, creating a fictitious merchant account under Singh’s name and sending the money to another account registered to the couple.
She is to stand retrial on of one of the original counts from last year’s trial, Count 5 Intimidating a Witness, on which the jury was deadlocked, as well as new charges: preparing false documents to be produced as genuine for fraudulent or deceitful purposes, and doctoring court minutes to escape from custody by purporting she had been released on her own recognizance.
Perhaps the day’s biggest hearing involved a motion to recuse the Mono County District Attorney’s office, and a subsequent motion to retry the original case, based on the defense’s charge that the DA’s office, in effect, robbed Batterham of her right to a fair trial. Batterham’s attorney, Therese Hankel, took issue with the extent to which now former Deputy District Attorney Kyle Graham “inserted himself into the proceedings.”
“Rarely has there been a case in which such participation has been so pervasive,” she argued before Judge Richard K. Specchio from Alpine County Superior Court. Hankel railed against Graham’s testifying on 4 of the 5 counts and being called as a witness in support of aspects of the case for which she said he lacked credentials. In particular, Hankel protested the People calling Graham rather than an expert, to discern whether some iterations of contracts of employment that were under dispute were forgeries. Hankel also protested what she thinks was improper questioning of Oklahoma attorney Christian Zeaman, who was involved in the case because of his prior relationship to Sara and her family, accusing the DA’s office of not recording the conversation or having a 3rd party present.
Investigating buildings and documents, all of which Hankel indicated is “in violation of standard procedure for prosecutors,” should be left to law enforcement. “The overarching problem I have with all this is whenever [the People] need a witness to testify about something, they call the DA’s office. ‘Hey, did you see this subpoena, this 10% contract?’ [Graham] is not a certified document examiner.”
Hankel suggested that Graham, who was the prosecutor during the early part of the case between 2007 and 2009, was held out to the jury as if he was still the prosecutor, filing charges and submitting documents.
It was all that, she said, that raised what she called a “prejudice” against her client. Further, she charged that if he’s allowed to testify in the Count 5 retrial, “the same thing would happen all over again.”
Representing the People, Mono County Deputy District Attorney Jeremy Ibrahim refuted those assertions, saying that by the time he joined the DA’s office in October 2009, Graham had already left the office and was working in the private sector.
Did Graham talk to Zeaman? Yes, he said. Did Graham conduct investigations? Yes. But, Ibrahim countered, Graham wasn’t part of the DA’s office during the trial, and had no part in the prosecution of the case. He was used in more of a civilian capacity.
“I never knew him previously,” Ibrahim said. “He testified as a witness regarding things he did and saw as a former Deputy DA. That was made very clear; there was no question as to his role in the case.”
Graham didn’t “authenticate” any documents, but made remarks about documents he received, such as a subpoena involving the online payment service PayPal.
Ibrahim stood by the DA office’s conduct, and rejected any notion of impropriety on the part of the DA’s office, adding that a genuine conflict has to be shown, and the defense hasn’t met that obligation.
Called in to consult on the matter, Deputy Attorney General Sean McCoy noted that, while he can’t speak to what was done or not done by Graham, it was clear to him that he was not with the DA’s office at the time the case went to trial. McCoy also pointed out that no “spillover” from the old case to the new charges has been alleged, there is no issue as to Ibrahim’s conduct as prosecutor that would warrant recusal, and that overall he didn’t find anything that would adversely affect the office’s ability to prosecute the case with proper discretion.
“It might be different if Graham were still with the office,” McCoy said, a point on which both Ibrahim and Judge Specchio agreed.
Judge Specchio observed that an appearance of impropriety doesn’t support recusal. “A recusal of the entire office is a very dramatic step, but Graham’s involvement through 2009 isn’t enough to warrant a finding under 1424,” he commented, prior to issuing a denial.
Regarding the newer charges against her, another motion heard Tuesday involved a 995 Motion to Dismiss, alleging that the material evidence linking Batterham to documents related to her supposed escape attempt was flimsy.
Judge Specchio disagreed with Hankel, who insisted that the evidence wasn’t enough to base the escape charges against her client. “During the pre-trial hearing, there was no testimony, no evidence linking [Batterham] to [fax documents cited], no intent established,” Hankel reasoned.
Judge Specchio disagreed, pointing out that there was no objection made during the pre-trial hearing, and that only a “scintilla of evidence” is needed. “What possible other reason could there be other than to secure [an illegitimate] release?” he asked rhetorically.
He also granted a motion to consolidate Count 5 from the so-called “old trial” in November with the new charges.
And during a closed session hearing, Judge John T. Ball, who presided over the November trial, denied a Marsden motion filed by Batterham to discharge Hankel on the basis of being incompetently or inadequately represented. During her trial in November, Batterham represented herself, and the court subsequently assigned Hankel to represent Batterham going forward.
Batterham has yet to be sentenced on the original trial, and is scheduled to find out what fate awaits her on May 8, be it jail time, restitution or some combination of the two. At that same time, Judge Ball is also expected to rule on the defense’s motion for a new trial in the “old” case, and a date is to be set with Judge Specchio for beginning the consolidated case, containing both the Count 5 retrial and the new charges.
