Magallanez trial continued to Aug. 13
Defense motion asked for delay or dismissal
By Bobbi Mlynar
Friday, July 6, 2007
The trial scheduled to begin Monday in a 2006 case involving rape of a teenager has been continued until next month, as a result of a motion hearing Friday morning in Lyon County District Court.
Julia Spainhour, attorney for Raul Magallanez Jr., filed motions Thursday afternoon to either dismiss or continue his trial because the prosecution had not provided all of the evidence ordered in earlier motions for discovery.
Chief Judge Merlin Wheeler, who presided over the hearing in the absence of District Judge Lee Fowler, denied the dismissal motion but granted the request for a continuance. The case considered Friday will be moved to Aug. 13, and will replace another trial that was scheduled for Magallanez on charges of sex, alcohol and drug crimes against children. The defendant has a third case, also scheduled for trial in August. Those two cases will be re-scheduled when Judge Fowler returns.
Spainhour told the court on Friday that she had been handed a packet of additional discovery documents on July 3. She received a fax at 5:30 p.m. July 3 with a Dec. 18 police report by Emporia Police Detective Lisa Sage.
“Upon going through the documents, I discovered what I believed was relevant and important evidence that should have been disclosed to us much sooner,” Spainhour said.
The evidence included photocopies of letters between Magallanez and his mother, 257 pages of copies of e-mails and color pictures that apparently were taken from Yahoo! e-mail, six compact disks with photographs taken during execution of search warrants, a report on disk of examination results done by the American Regional Computer Forensic Laboratory and detectives’ reports that had not previously been disclosed, she said.
“I had requested any audio recordings of client statements early on in the case and was not provided either one of the recordings that I have described in my motion,” Spainhour said.
Because of the delay in getting evidence, Spainhour said she had not had an opportunity to determine whom to subpoena, and that could “directly influence my client’s right to due process.”
Assistant County Attorney Amy Aranda said that the prosecution did not have a copy of the cell phone conversation between Magallanez and the alleged victim.
“To the state’s knowledge, there is no recording made of that...,” Aranda said. “Detective Sage listened to that and made a report... That report was provided to the county attorney’s office June 22.”
“That didn’t come to you until June 22?” Wheeler asked.
Judge Wheeler asked why the cell phone conversation had not been transcribed earlier, “particularly since I understand it involves a communication from the victim.”
“Judge, I don’t have an answer for that,” Aranda said.
She said that the phone, subject to the search warrant, was sent to the computer lab, which did not complete its examination and report until mid-April. Sage picked up the report April 16.
“Where have those disks languished so that they were not made available to her until the earliest, as I understand now, the 22nd of June, which would be the time you told Ms. Spainhour that they were ready to be picked up?” Judge Wheeler asked.
Aranda later told the court that Sage discovered the December report was unfinished as she prepared for next week’s trial, and that Sage finished the report and turned it into the county attorney’s office.
Aranda told the court that she and Spainhour had exchanged numerous e-mails and had conversations about evidence that was available. She had mentioned to Spainhour that she could not open some of the disks because the county attorney’s office lacked the Microsoft programs to view the information, and said that Spainhour said her own office suffered from computer-related needs.
Aranda said that she had a conversation with Spainhour on Feb. 27 and believed that Spainhour had contacted the Emporia Police Department to get the cost of making copies of evidence.
“It was our understanding that we were to simply advise that these were available and at some point it became the defendant’s obligation to request copies of these from Emporia PD,” Aranda said. “... It was my understanding that she was making direct contact with EPD to request her own copies of these things, and I didn’t become aware that there was a problem until this week.”
When she received an e-mail from Spainhour saying that she did not have the evidence, Aranda provided a copy to her as a courtesy.
“On May 18, she signed for the Heart of America report and she told me she hadn’t opened up and hadn’t looked at the computer results yet,” Aranda said.
Aranda said that some of the information Spainhour was requesting related to the other two cases and open investigations, rather than to the trial in question. She listed a number of pieces of evidence that she had notified Spainhour of.
“They can view our copy at any time,” Aranda said. “That was never requested.”
Wheeler, in issuing his decision, said that the prosecution was not obligated to make copies at state expense to provide to the defense.
“The state’s obligation pursuant to discovery orders is to make known to the defense that these items exist,” Wheeler said.
The defense then can go to the generating agency and obtain copies or look at copies in the county attorney’s office. That policy will not be changed, Wheeler said, but the situation at the motion hearing received a special dispensation.
“The problem that we have here is that not all of that was done,” Wheeler said. “... The bottom line is there’s enough blame for today’s mess to go around for everyone...
“Ms. Spainhour, when you know something’s at the police department in evidence, I don’t think it’s the obligation of the state to go get that copy, make a copy and then send it to you,” he said. “As long as you know about it, I think the state has fulfilled that obligation.”
Wheeler said that under the circumstances, “there just aren’t enough hours in a day” for Spainhour to go over the evidence provided on July 3.
Details of the motion hearing today will be published in the Weekend edition of The Gazette.
mythoughts (anonymous) says...
If this guy is guilty, and he gets away with it because the prosecution can't do their job, I think someone at the Courthouse needs to have a "Come to Jesus" meeting.
July 6, 2007 at 1:42 p.m. ( permalink | suggest removal )
former_emporian (anonymous) says...
this pervert has a guardian angel on his sick,pedophile shoulder. If he gets away with this it only proves that emporia cannot protect its children from men that prey on the innocent. He has traded information about other drug dealers to police for years and has preyed upon the youth of this town for far to long. blame the emporia police department for this situation.
July 7, 2007 at 1:35 a.m. ( permalink | suggest removal )