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Judge strikes police interrogation

on December 21, 2010

Judge Gregory Caskey on Monday suppressed the majority of a police interrogation of 16-year-old Cody Smith, who is the youngest of seven defendants police say were involved in the rape and beating of a Richmond High student in October 2009. Smith and the other defendants will likely learn today if they will go to trial and on what charges.

After listening to Sgt. Lori Curran—the District Attorney’s 20th and final witness—explain in the preliminary hearing how she continued questioning Smith after he invoked his right to remain silent, Judge Caskey ruled the interrogation should have ended there.

The judge also said Curran didn’t properly Mirandize Smith. Police are required to tell suspects in custody of their rights to be silent and to obtain an attorney, before interrogating them. Violations of this render the suspect’s statements inadmissible in court.

Curran—the case’s lead investigator—testified that she didn’t read Smith his Miranda rights before the interview at the police station because he wasn’t then a suspect. “He was strictly there as a witness,” she said.

Curran and a detective went to Richmond High school two days after the initial arrests to try to contact Smith—whose name had been mentioned to police by both the victim and defendant Manuel Ortega.

Smith agreed to go to the police station to answer some questions, Curran testified, after she explained to Smith that he wasn’t in custody and didn’t have to go.

Curran testified Smith was very reluctant to provide information. Some 45 minutes into the interview, Smith asked to leave, but Curran refused. “I still felt he had pertinent information about the people responsible for this and I thought he was holding back,” she said.

Before Smith incriminated himself or any of the defendants—statements which Judge Caskey later said were thin in value—Smith said, “I plead the Fifth,” referring to the right not to have to incriminate oneself in criminal proceedings.

Curran continued with her questioning and it was only later—after Smith revealed some possible criminal involvement—that Curran read Smith his rights and said he was under arrest.

When Smith invoked his right to silence, Curran, “chose not to hear that because she knew she’d have to stop questioning Smith,” said Judge Caskey. Curran was “hoping he would identify by name the others involved,” said Caskey.

The judge struck all of Smith’s statements beginning after he invoked his right to remain silent to the end of the interview, and said the statements, “won’t be used in this court to see whether Cody Smith should be held to answer.”

Smith’s attorney David Headley, who brought the motion to suppress, said in the courtroom that he understood Curran’s decision not to Mirandize Smith. “There was vast pressure from the media, a horrible crime, many people involved, and not enough leads,” he said.

“She made a reasonable call; her priority was to get information,” Headley said later outside the courtroom.

Asked by a reporter if he thought the judge’s decision was a victory, Headley responded, “I think a victory is when the odds are against you. I think what happened was just right.”

If Smith goes to trial, he faces life in prison.

But Headley is confident that the major charges against his client will be dismissed and that, “any criminal behavior on behalf of Smith would go back to juvenile court.”

When other defense attorneys voiced their concern that Smith’s statements might still be used against their clients, Judge Caskey made himself clear. “I don’t consider Cody Smith’s statements for any purpose in the preliminary hearing for any defendants and I don’t think I need to say anything else,” he said.

After 19 days and 20 witnesses, court will reconvene Tuesday for the hearing’s final day, when attorneys will present their oral arguments before Judge Caskey. The judge will then decide if DA Dara Cashman has established probable cause that a crime was committed and that there is sufficient evidence against each defendant to warrant a trial.

The judge has indicated that he’s still unconvinced about some of the defendants.

“I have some concerns whether there is sufficient evidence to hold Cody Smith to answer,” Judge Caskey told Cashman in court on Monday. He also raised concern about “the state of evidence with regard to Torrentes.” Defendant Elvis Torrentes faces 26 years in prison if his case goes to trial.

While the judge must listen to the oral arguments before announcing his decision, several exchanges in court on Monday revealed his frame of mind going into the hearing’s final day.

With regard to Manuel Ortega, Judge Caskey said to Ortega’s attorney, Jack Funk, “So if your client is held to answer, which I don’t think it’s going to surprise you by saying he’s likely to be,” the question of whether Smith’s testimony could be used in trial will be resolved by a trial judge.

In a comment about defendants Ari Morales and Marcelles Peter, Judge Caskey said, “We’re not dealing with sophisticated criminals, as far as I know. We’re certainly dealing with some young men who made some very, very bad mistakes.”

After defendant John Crane Jr.’s attorney raised questions about the age of the photo police used to see if the victim recognized Crane—Judge Caskey said it appeared that, “The entire case against your client is based on DNA evidence and that’s it. She [the DA] may tell me differently.”

Nothing revealing was mentioned about the seventh defendant, Jose Montano, who—like Ortega, Morales, Peter, Smith, and Crane—faces a life sentence if his case goes to trial.

Judge Caskey is expected to decide today which defendants will go to trial, and on what charges. The concluding session of the preliminary hearing begins in Contra Costa County Superior Court in Martinez at 9:30.

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