DA bid to re­move preg­nant de­fense lawyer with­drawn

Pros­e­cu­tor re­quest met with out­rage by women’s groups and de­fense bar

The Mercury News Weekend - - FRONT PAGE - By Tracey Ka­plan tka­plan@ba­yare­anews­group.com

SAN JOSE » District At­tor­ney Jeff Rosen’s of­fice found it­self ac­cused of sex­ism this week af­ter seek­ing to boot a preg­nant de­fense lawyer off a gang case, say­ing it an­tic­i­pated she would ask the judge to post­pone the trial so she could take op­tional ma­ter­nity leave.

But at­tor­ney Re­nee Hessling never planned or sought to take such a leave, and af­ter the de­fense bar and women’s groups ob­jected to the premise of the pros­e­cu­tor’s mo­tion, the Santa Clara County District At­tor­ney’s Of­fice chose to with­draw it.

“I’ min pri­vate prac­tice,” Hessling said. “I can’t af­ford to take any time off, and I also take my re­spon­si­bil­i­ties to my clients and the courts se­ri­ously.”

Hessling, who is preg­nant with twins, will be off on a med­i­cal dis­abil­ity for about eight weeks af­ter hav­ing manda­tory C-sec­tion surgery, and will be ready for the five- de­fen­dant, dou­ble-ho--

mi­cide trial by March.

Amed­i­cal dis­abil­ity, even for a preg­nancy, is gen­er­ally con­sid­ered “good cause” to post­pone a trial.

The mo­tion filed by deputy district at­tor­ney Leigh Fra­zier sparked out­rage this week, even among some of Fra­zier’s fel­low prose­cu­tors. It also came un­der fire Wed­nes­day in a class at Santa Clara Univer­sity’s law school. And a mem­ber of the Asian Amer­i­can Crim­i­nal Trial Lawyers As­so­ci­a­tion no­ti­fied Hessling that the group­was in­ter­ested in draw­ing up a let­ter to the District At­tor­ney’s Of­fice protest­ing the mo­tion.

In a scathing state­ment Thurs­day, county Pub­lic De­fender Molly O’Neal con­demned the pros­e­cu­tion’s mo­tion as bi­ased against women.

“It is truly hard to fathom how a fe­male pros­e­cu­tor in 2017 would fail to rec­og­nize that a preg­nancy-re­lated surgery is ob­vi­ous good cause,” O’Neal said.

Fra­zier de­fended her mo­tion this week, even af­ter the District At­tor­ney’s Of­fice with­drew it, not­ing in a state­ment that “there are five vic­tims in this case, in­clud­ing a mur­dered preg­nant woman.”

“We do not want any fur­ther de­lays in this mul­ti­ple-de­fen­dant gang case,” she said.

But the case could have taken far longer to get to trial — at least six more months — if Fra­zier had suc­ceeded in get­ting Hessling re­moved. A new at- tor­ney would have had to bone up on the dou­ble-homi­cide in­volv­ing five sus­pected gang mem­bers, in­clud­ing por­ing over reams of pa­per­work and CDs.

If the trial starts in March, the case would be slightly more than two years old. Other gang cases have typ­i­cally taken years longer to get to trial, a sit­u­a­tion both prose­cu­tors and de­fense at­tor­neys are un­der pres­sure to rem­edy.

“The pros­e­cu­tor’s re­quest is fac­tu­ally and legally f lawed, pre­ma­ture and im­prac­ti­cal since Ms. Hessling’s re­moval would ac­tu­ally cause greater de­lay,” said Sylvia Perez-MacDon­ald, di­rec­tor of the In­de­pen­dent De­fense Coun­sel Of­fice, which ap­points pri­vate at­tor­neys, in­clud­ing Hessling, to rep­re­sent indi­gent clients when the Pub­lic De­fender’s Of­fice can­not rep­re­sent the client.

Rosen’s ad­min­is­tra­tion de­clined to com­ment.

Com­pli­cat­ing the mat­ter in this case, one of the de­fen­dants had in­di­cated he would move to in­voke his right to a speedy trial within 60 days, at the same time that Hessling had men­tioned she would seek the con­tin­u­ance. How­ever, that de­fen­dant changed his mind and is now will­ing to wait.

In her state­ment, Fra­zier wrote that she with­drew the mo­tion to re­move Hes- sling be­cause of that de­fen­dant’s change of heart.

“Con­se­quently, we have with­drawn our op­po­si­tion,” she said in the state­ment. “We will con­tinue to try to get the case to trial as soon as pos­si­ble.”

The pros­e­cu­tion’s con­cern was that if the de­fen­dant had con­tin­ued to in­sist on a speedy trial, the judge could have forced the District At­tor­ney’s Of­fice to try him separately from the other de­fen­dants, mak­ing Fra­zier’s job to win jus­tice for the two vic­tims much tougher.

Or the judge could have dis­missed the mur­der charges al­to­gether against that de­fen­dant, un­less there was good cause for de­lay.

But given the rel­a­tive brevity of the de­lay — and the fact that an­other de­fense at­tor­ney in the case will also be un­avail­able in De­cem­ber be­cause she will be in an­other trial— it is ex­tremely un­likely the judge would do ei­ther of those things.

It is far more likely the judge would have found the med­i­cal dis­abil­ity to be good cause for or­der­ing the de­fen­dant to wait.

Even if Hessling had planned to take ma­ter­nity leave, there is no hard-and-fast rule about whether such time off rep­re­sents good cause. Two years ago, a dif­fer­ent judge in an­other case that Fra­zier was in­volved in ruled that a long ma­ter­nity leave was not a suf­fi­cient rea­son to post­pone that trial. But that rul­ing did not es­tab­lish a prece­dent, mean­ing the judge in this case, Vanessa A. Zecher, was not ob­li­gated to rule in kind.

Even though Fra­zier’s mo­tion was even­tu­ally with­drawn, Perez-MacDon­ald crit­i­cized Rosen’s of­fice for fail­ing to ac­knowl­edge what she char­ac­ter­ized as an ex­tremely flawed le­gal ma­neu­ver.

“It is dis­ap­point­ing that the pros­e­cu­tor’s of­fice has been un­will­ing to pub­licly or pri­vately ac­knowl­edge the pro­found flaws with this re­quest,” she said, “given our com­mon in­ter­est to re­duce de­lay, pro­tect the in­tegrity of crim­i­nal pro­ceed­ings and our com­mon pur­suit for gen­der equal­ity.”

“It is truly hard to fath­omhowa fe­male pros­e­cu­tor in 2017 would fail to rec­og­nize that a preg­nan­cyre­lated surgery is ob­vi­ous good cause.” — Santa Clara County Pub­lic De­fender Molly O’Neal

COUR­TESY OF RE­NEE HESSLING

At­tor­ney Re­nee Hessling’s twin­swill join her son, Jasper.

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