The Gang's Not Here

Inmate says attempted-murder conviction must be reversed because cops cheated. A judge is listening

Imagine the surprise when "Jokey" and his brother appeared for closing arguments. They wore what Kim and Marty called gang attire—jumbo-sized white T-shirts and baggy dark pants—accentuated with shaved heads. The brothers traded smiles with Martinez but did not misbehave.

After a short period of time, Marty received a head signal from Minnie and quietly asked the Garza brothers to exit. In a hallway, the investigator (with backup from Deputy R. Thompson) questioned the men. They denied gang ties but admitted their friendship with Martinez, according to law-enforcement records of the encounter. Fearful for the safety of jurors and court personnel, the officers told the pair to leave the courthouse. The brothers complied.

Back inside the courtroom, Wheeler hadn't witnessed the expulsions, but he sensed trouble. The defense lawyer confronted Marty and Kim, who sought a private meeting with the judge in his chambers. Donahue wasn't impressed by the prosecution's concerns. After the briefing, he marched into open court and declared the Garza brothers welcome. But they were long gone.

Instead of immediately seeking a mistrial, Wheeler and Martinez rolled the judicial dice. They allowed the jury to deliberate and render verdicts. Only after he was found guilty on all counts did Martinez declare the expulsions had tainted his right to a fair trial.

To Gurwitz, tossing out the verdicts would be "manifestly unjust" to the prosecution, the jury, the victim and the public.

"Twelve people saw all of the evidence and unanimously agreed that Mr. Martinez attempted to murder an innocent human being," said Gurwitz. "He received a fundamentally fair trial, and he deserves the punishment he now faces."

Donahue is scheduled to announce his decision on Aug. 10.


UPDATE: Judge Donahue has delayed a decision until Sept. 7.

rscottmoxley@ocweekly.com

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