Sen­tenc­ing in Sierra La­Mar case halted

De­fense moves to dis­qual­ify judge for al­leged con­flict of in­ter­est in mur­der trial

The Mercury News Weekend - - LOCAL NEWS - COURT By Tracey Ka­plan tka­plan@ba­yare­anews­group.com

SAN JOSE » The sen­tenc­ing hear­ing for the man con­victed of killing miss­ing teen Sierra La­Mar was abruptly post­poned Thurs­day af­ter de­fense at­tor­neys moved to dis­qual­ify the judge for fail­ing to dis­close a po­ten­tially sig­nif­i­cant con­flict of in­ter­est that they claim threat­ens to up­end the guilty ver­dict in the cap­i­tal trial.

The de­fense learned Wed­nes­day af­ter work­ing with Judge Vanessa A. Zecher for more than a year that she had once rep­re­sented the pros­e­cu­tion’s lead in­ves­ti­ga­tor, Sher­iff’s Sgt. Her­man Leon, whose in­tegrity has be­come a ma­jor is­sue in the Sierra trial and in an­other re­cent mur­der case.

More than 25 years ago, Leon was sued for wrong­ful death in a case that in­volved al­le­ga­tions of ex­ces­sive force against a men­tally ill jail in­mate, who died in 1989 af­ter be­ing held down and re­peat­edly Tased. At the time, the judge worked for the County Coun­sel’s Of­fice, which rep­re­sents Santa Clara County em­ploy­ees, in­clud­ing jail per­son­nel.

County of­fi­cials could not im­me­di­ately say how much they set­tled the case for, but court doc­u­ments in the case say the county made a $650,000 set­tle­ment in 1991.

Ac­cord­ing to mul­ti­ple sources, the judge said she did not re­call rep­re­sent­ing Leon un­til de­fense at­tor­neys brought up the is­sue as grounds for dis­qual­i­fy­ing her

from sen­tenc­ing him Fri­day and for a new trial.

But in a dec­la­ra­tion filed with the court Thurs­day, de­fense at­tor­ney Al Lopez char­ac­ter­ized Zecher’s role in the case as “sub­stan­tial.” The de­fense team learned of her role af­ter dig­ging through civil court records in­volv­ing Leon. If the team had known of her role at the out­set of Gar­cia-Tor­res’ trial, Lopez said the de­fense would have ex­er­cised its right to dis­qual­ify her with­out cause and tried both the guilt and the penalty phases of the trial be­fore a dif­fer­ent judge.

The un­ex­pected move came as Zecher was poised to de­cide Thurs­day whether to grant An­tolin Gar­cia-Tor­res a new trial based on the de­fense’s claim that Leon had given false tes­ti­mony in the other re­cent mur­der trial and had also planted a strand of Sierra’s hair on a rope found in the trunk of Gar­cia-Tor­res’ car.

Thurs­day’s hear­ing was sup­posed to be fol­lowed by the ac­tual sen­tenc­ing Fri­day morn­ing of An­tolin Gar­cia-Tor­res, more than five years af­ter Sierra was killed. Her par­ents looked baf­fled and then down­cast as the judge crisply an­nounced that the de­fense had filed a “170.1,” the pe­nal code num­ber for dis­qual­i­fy­ing a judge for cause, and then left the stand. Sierra’s par­ents also quickly left af­ter con­fer­ring pri­vately with prose­cu­tor David Boyd and could not be reached im­me­di­ately for comment.

Not­ing the case was still pend­ing, the Dis­trict At­tor­ney’s Of­fice de­clined to comment on the un­ex­pected de­vel­op­ment, in­clud­ing whether they knew about the judge’s role in de­fend­ing Leon decades ago. Sources fa­mil­iar with the case said they had no idea.

Gar­cia-Tor­res, 26, was con­victed in May of ab­duct­ing and killing 15-yearold Sierra as she made her way to her school bus stop in a semi-ru­ral area north of Mor­gan Hill early one morn­ing in 2012. He was also found guilty of the 2009 at­tempted kid­nap­pings of three other women from gro­cery store park­ing lots, which the pros­e­cu­tion por­trayed as a “train­ing ground” for Sierra’s ab­duc­tion and mur­der three years later.

He faces a manda­tory sen­tence of life in prison with­out the pos­si­bil­ity of pa­role af­ter the jury in June re­jected send­ing him to death row.

The day af­ter Gar­cia-Tor­res was con­victed in May, the judge in the court­room next door, cit­ing “false sta­tis­ti­cal ev­i­dence’’ pro­vided by Sgt. Her­man Leon, took the ex­tremely rare step of set­ting aside the 2016 mur­der con­vic­tion of two men in a tragic 2009 stab­bing case and or­der­ing a new trial. The Dis­trict At­tor­ney’s Of­fice has ap­pealed.

The judge in that case, Sharon Chatman, did not ad­dress whether Leon de­lib­er­ately mis­led the jury or was merely mis­taken. Pros­e­cu­tors in Sierra’s case have ar­gued in court doc­u­ments that Leon merely gave an in­ac­cu­rate estimate when he tes­ti­fied that sus­pects in “30 to 40 per­cent’’ of the stab­bing cases the sher­iff’s of­fice han­dled dur­ing a nine-year pe­riod since he’d been a de­tec­tive wore gloves to pre­vent in­jury in stab­bing cases.

But de­fense at­tor­neys af­ter that trial re­viewed 103 records about stab­bing cases filed by the Dis­trict At­tor­ney’s Of­fice dur­ing the rel­e­vant time pe­riod and dis­cov­ered that their case was the only one in which it was al­leged that the as­sailant wore gloves. In a brief filed prior to Thurs­day’s hear­ing, pros­e­cu­tors ar­gued that Leon was re­fer­ring to all cases, in­clud­ing those that were re­ported but never pros­e­cuted. The county claimed it could not pro­vide the de­fense at­tor­neys with records of re­ported stab­bings.

Prior to Chatman’s rul­ing, Leon had been cred­ited in Sierra’s case with link­ing Gar­cia-Tor­res to the three un­solved at­tempted kid­nap­pings in Mor­gan Hill. The jury con­victed Gar­ci­aTor­res of those crimes as well af­ter his fin­ger­print was found on the bat­tery of a stun gun the as­sailant dropped dur­ing one of the at­tacks.

STAFF FILE PHOTO

An­tolin Gar­cia-Tor­res was con­victed in the 2012 mur­der, but his sen­tenc­ing was post­poned Thurs­day af­ter de­fense at­tor­neys moved to dis­qual­ify Judge Vanessa A. Zecher.

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