By Matt Coker
By R. Scott Moxley
By Charles Lam
By Nick Schou
By Gustavo Arellano
By Gustavo Arellano
By Steve Lowery
By R. Scott Moxley
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In Orange County’s public-defender circles, Bercher—a stocky, feisty fellow who speaks with a surfer-dude, nasal tone—is famous for his aggressive defense of accused criminals. He’s a volunteer soccer coach. The University of Texas at Austin and UC Hastings law graduate looks like a cop (his hairstyle is a flat-top), yet cops don’t normally like him. There’s no doubt why. Bercher is fearless in a courtroom. You won’t hear him apologize for deriding cops or prosecutors he thinks are dishonest. Indeed, over the years, more than a few officers have walked off the witness stand to angrily blast Bercher as anti-law enforcement.
During June’s lengthy jury selection for the Jessee/Aehlert trial, Bercher told prospective jurors he was “honored to represent” Jessee. (Mild-mannered Doug Lobato, another public defender, represented Aehlert.) He wasted no time attacking not only the cops, but also prosecutor Mike Murray and his star witness, Schrauben. Serving in law enforcement “doesn’t mean [that person] won’t lie,” Bercher told a packed courtroom. He asked prospective jurors if they would trust a snitch.
Outside the presence of the jury pool, Bercher further signaled his desire to slug it out with Murray. He complained to Sanders, running her first murder trial, that the DA was improperly influencing jurors during the selection process by “attempting to precondition the jury to validate his conduct.” Said Bercher, “I’m deeply concerned about Mrs. Jessee’s right to a fair trial.” Murray was unamused.
Perhaps sensing the coming bitter sparring between attorneys, the judge smiled after one pretrial bout and said in her South African accent, “Trials are not like choreographed ballets—far from it.”
Jurors laughed, but what they’d witnessed was far from humorous.
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It’s not uncommon for Orange County defense lawyers to attack the credibility of police witnesses, but it’s rare when they’ll assert that the prosecutor is dirty. At trial, Bercher and Lobato, Aehlert’s lawyer, accused Murray of “making a deal with the devil,” Schrauben. Dozens of times, they told the jury that Murray had written “a script” for the hit man to falsely implicate their clients. They called Schrauben a “pathological liar.” They tried but failed to present evidence that Schrauben slept with his adult, married sister when her husband was out of town. They pointed out that police have never arrested Garrick, the knife wielder in Schrauben’s account, and that, in a 2005 preliminary hearing, a judge rejected Jessee as a co-defendant, only to see her re-charged. Bercher held little back, accusing the DA’s office of “manufacturing a motive [against Jessee and Aehlert]” because Murray was intent on assigning a “diabolical motive” to their conduct. He even tried to provoke the prosecutor and Wyatt, asking the men if they called each other in the morning to coordinate clothing.
In two OCSD interviews, Garrick denied killing Jack Jessee, but Murray says his interest in Garrick is “very much open and active.” He explains his deal with Schrauben this way: “He’s a villain. You can’t sugarcoat the guy. But it’s not a perfect world.”
And Bercher’s taunts? “I’m not going to stoop to his level,” he says.
The bottom line for the prosecutor is whether evidence backed the hit man’s story. In his view, bank, phone, hotel and airline records found after the confession, plus an eyewitness, corroborate key portions of the assertion that after Jessee made a pre-murder $5,000 payment, Schrauben took turn-around Southwest Airlines flights to Phoenix, where Aehlert handed him three cash installments totaling $45,000.
Bercher suggested an alternative theory: Cash flowing from Jessee’s bank account when Schrauben claims he received his installments actually paid for loads of marijuana, casino losses and under-the-table gifts to family members in an attempt to hide income from the IRS.
There was also this eyebrow-raising tidbit: After moving to Arizona, Jessee named Schrauben as one of the trustees to her estate.
“Jack Jesse was a real person,” Murray told jurors. “He had a life, and it was taken away for one of the vilest reasons imaginable: greed—pure unadulterated greed.”
Murray’s argument convinced all but one juror.
If he wins convictions at a future trial, two ironies will loom above all others in a case loaded with them. Police say Jack Jessee’s final words were a plea for his wife to rescue him. And, according to the autopsy, Sandra Jessee was on the verge of inheriting her husband’s money anyway. Dr. Anthony Juguilon, a pathologist, estimated that Jack had as few as two months to live if he hadn’t been murdered.
But Bercher won’t concede: “Sandra didn’t do it, and Mr. Murray knows it.”